LIBRARY 


UNIVERSITY  OF  CALIFORNIA. 


Class 


SPECIFICATIONS 

AND 

CONTRACTS 


A  SERIES  OF  LECTURES  DELIVERED 
BY 

J.  A.  L.  WADDELL,  C.E.,  D.Sc.,  LL.D., 

Author  of  "De  Pontibus,"  Etc. 


INCLUDING  EXAMPLES  FOR  PRACTICE  IN 

SPECIFICATION  AND    CONTRACT 

WRITING,  TOGETHER  WITH 

NOTES  ON  THE  LAW 
OP  CONTRACTS 

By  JOHN  C.   WAIT,   M.C.E.,   LL.B., 

Author  of  "Engineering:  and  Architectural  Jurisprudence,"  Etc. 


NEW    YORK 

THE  ENGINEERING  NEWS  PUBLISHING  COMPANY 

1908 


COPYRIGHT,  1907, 

BY 
THE    ENGINEERING    NEWS    PUBLISHING  CO. 


PUBLISHER'S    PREFACE. 


Soon  after  Dr.  Waddell's  lecture  on  "Engineering  Contracts" 
appeared  in  The  Polytechnic  a  large  portion  of  it  was  copied  by 
Engineering  News,  and  at  the  same  time  one  of  the  editorial  staff 
of  the  latter  paper  wrote  him  offering  to  bring  out  the  lecture  in 
pamphlet  or  book  form.  Dr.  Waddell  replied  that  he  had  already 
made  arrangements  for  publishing  the  lecture  in  pamphlet  form  for 
complimentary  distribution;  but  suggested  that  a  book  containing 
not  only  the  lecture  referred  to,  but  also  his  previous  one  on 
"Specifications,"  supplemented  by  data  for  numerous  examples  for 
specification,  and  contract  writing  by  students,  and  supplemented 
perhaps  also  by  notes  by  his  friend,  Mr.  John  Cassan  Wait,  the  well- 
known  attorney  and  author,  might  prove  useful  in  engineering 
schools. 

In  view  of  Dr.  Waddell's  peculiar  and  characteristic  method  of 
treating  both  subjects,  in  that  he  deals  with  the  theory  or  science  of 
preparing  these  technical  documents  rather  than  by  following  the 
ordinary  method  of  making  numerous  and  copious  quotations  from 
similar  documents  actually  prepared  and  used,  the  editors  of 
Engineering  News  adopted  immediately  his  suggestion  and  arranged 
with  both  Dr.  Waddell  and  Mr.  Wait  for  the  preparation  of  the 
necessary  manuscript. 

The  publishers  believe  that  this  little  book,  if  generally  used  as  a 
text-book  in  engineering  schools,  and  if  each  student  thereof  is 
required  to  prepare  by  its  means  a  complete  specification  and  an 
exhaustive  contract  based  on  the  "Examples"  given,  would  do  more 
than  any  other  text-book  or  combination  of  text-books  to  perfect 
young  engineers  in  the  writing  of  technical  documents. 

Dr.  Waddell  stipulated  that  the  price  of  the  book  should  be  kept 
as  low  as  possible,  so  as  to  make  its  purchase  no  hardship  for  the 
students;  and  this  has  been  done. 

It  is  sincerely  hoped  by  all  concerned  that  the  work  will 
effectively  accomplish  the  sole  object  of  its  writers  and  publishers — 
viz.,  the  advancement  of  the  engineering  profession  in  one  of  its 
most  important  lines. 

THE  ENGINEERING  NEWS  PUBLISHING  COMPANY. 

220  Broadway,  New  York. 
December  1,  1907. 


173479 


CONTENTS. 


Specifications         .          .          .          .          .          .          .          .  .      1 

Examples  for  Practice  in  Specification  Writing    ...  48 

Engineering  Contracts            .          .          .          .          .        ,  .  .60 

Examples  for  Practice  in  Contract  Writing   .          .          .          .  no 

Notes  on  the  Law  of  Contracts        .          .          ...  .130 

Index       .  169 


Specifications. 


A  Lecture  Delivered  to  the  Senior  Class  of  the  Eensselaer 
Polytechnic  Institute  on  April  30,  1903. 


Thus  far,  in  addressing  you,  young  gentlemen,  I  flatter  myself  Introduction 
that  I  have  interested  you  and  held  your  attention  fairly  well;  but 
now  I  am  going  to  risk  losing  the  prestige  that  I  think  I  have 
gained  among  you,  by  giving  you  a  long,  tedious  talk  on  the  dryest 
of  all  dry,  technical  subjects — specifications. 

Dry,  however,  as  the  subject  may  be,  there  is  no  other  of  greater 
importance  in  engineering  practice;  hence  I  feel  that  I  would  not  be 
doing  either  my  duty  by  you  or  justice  to  myself  were  I  to  spare 
you  the  infliction  of  this  last  lecture,  merely  for  the  sake  of  trying 
to  leave  on  your  minds  the  impression  that  I  am  an  interesting 
speaker.  It  will  therefore  be  necessary  for  you  to  take  your  medi- 
cine philosophically,  and  I  am  going  to  ask  you  to  give  me  your 
closest  attention  and  to  endeavor  to  interest  yourselves  in  all  that 
I  say,  notwithstanding  its  extreme  dryness. 

The  substance  of  this  discourse  was  blocked  out  a  month  ago 
by  Mr.  Ash,  one  of  the  assistant  engineers  of  my  firm,  and  by  myself 
working  jointly;  it  was  then  partly  written  and  delivered  by  him 
to  the  engineering  students  of  the  Missouri  State  University.  Since 
then  I  have  revised  and  enlarged  the  lecture  considerably  for  your 
special  benefit. 

Between  the  individual  or  corporation  desiring  the  work  done  Status  of  Engine 
and  the  contractor  who  performs  it,  stands  the  engineer  who  has 
designed  it  and  who  usually  superintends  its  execution.  He  is  in 
the  employ  of  the  persons  promoting  the  enterprise,  and  it  devolves 
upon  him  to  make  sure  that  those  who  retain  him  receive  an  honest 
and  fair  return  for  their  money.  While  it  is  true  that  he  is 
employed  by  only  one  of  the  parties  to  the  contract,  he  should  not 
be  partisan,  but  should  strive  to  see  that  fairness  to  both  is  secured. 
The  engineer  should  not  be  an  enemy  to  the  contractor,  but  should 
work  in  harmony  with  him,  and  should  do  all  he  can  to  further 
the  rapid  and  harmonious  completion  of  the  work,  being  careful,  of 


SPECIFICATIONS    AND    CONTRACTS. 


Specifications    De- 
fined 


Plans,  Utility  of 


course,  to  see  that  nothing  is  done  which  will  in  any  way  result  in 
an  inferior  construction.  As  the  engineer's  decisions  are  final  (unless 
it  can  be  shown  that  actual  fraud  exists),1  it  behooves  him  to  be 
careful  that  no  injustice  is  done  to  any  one. 

In  order  that  the  contractor  may  understand  the  scope  of  the 
work  to  be  performed  and  the  details  of  its  construction,  a  written 
description  and  plans  more  or  less  complete,  denning  the  methods 
of  construction,  material,  etc.,  to  be  used,  are  prepared  by  the 
engineer  for  the  approval  of  the  company  having  the  work  done 
and  for  the  guidance  of  the  contractor.  These  written  documents 
are  the  specifications,  and  together  with  the  contract,  of  which  they 
form  a  part,2  they  fix  definitely  the  relations  that  shall  subsist 
between  the  company  or  corporation  and  the  contractor. 

To  build  a  structure,  no  matter  how  simple,  there  must  be  a 
plan,  if  it  is  to  be  constructed  intelligently  and  efficiently.  As  the 
size  and  importance  of  the  structure  increase,  the  plan  grows  more 
and  more  complex,  and  hence  the  greater  necessity  for  putting  it  in 
some  fixed  and  definite  form  which  shall  convey  the  exact  idea 
existing  in  the  mind  of  the  engineer.  To  secure  the  proper  execu- 
tion of  a  work  of  any  magnitude,  specifications  are  absolutely 
necessary,  and  they  should  be  prepared  with  great  care  and  exact- 
ness. For  convenience  of  reference  and  for  clearness,  they  are 

Specifications,   Prep-    usually  divided  into  clauses,  which  may  be  classed  as  general  and 
aration 

specific.     General  clauses  refer  to  the  business  relations  that  shall 

exist  between  the  parties  to  the  contract.  In  them  is  found  the 
general  description  of  the  work  as  a  whole  without  any  particular 
reference  to  details.  Times  and  methods  of  making  payments, 
adherence  to  specifications,  inspection,  and  other  analogous  headings 
make  up  their  subject  matter.  They  should  be  comprehensive  in 
their  scope,  and  should  not  contradict  one  another.  It  is  well  to 
avoid  a  double  description  of  any  particular  thing.  Contradictory 
clauses  are  sure  to  be  a  stumbling  block  that  will  create  friction  and 
cause  delay.  At  first  glance  one  would  say  that  such  clauses  are  easily 
eliminated,  but  care  is  necessary  to  accomplish  this.  For  instance, 
a  certain  result  may  be  desired  in  the  substructure  of  a  bridge  that 
will  not  fit  in  with,  the  kind  of  superstructure  wanted.8 

Specific  clauses  have  to  do  with  the  details  of  construction  and 
the  description  of  particular  features  of  design.  They  embody  the 


1  When  it  is  expressly  so  provided,  as  is  usually  the  case. 

•  They  should  be  declared  to  be  so. 

•  These  general  conditions,  describing  the  general  relations  of  the  parties, 
their  duties,  and  general  obligations  are  best  embodied  in  the  contract. 


SPECIFICATIONS    AND    CONTRACTS.  3 

special  ideas  that  the  engineer  wishes  to  incorporate  in  the  work, 
and  they  should  be  just  as  minute  in  detail  as  is  requisite  to  set 
forth  the  exact  plan  desired.  Detailed  drawings  may  be  necessary  Detail  Drawings 
to  indicate  clearly  just  what  is  to  be  done,  and  these  drawings 
either  should  be  prepared  before  the  specifications  are  written,  or  at 
least  should  be  sufficiently  matured  in  the  mind  of  the  engineer  to 
enable  him  to  write  his  specifications  in  accordance  with  them.  It 
must  be  remembered  that  the  specifications  and  plans  constitute  a 
guide-book  for  the  contractor  and  for  the  resident  engineer.  They 
should  tell  what  must  be  done,  but  should  not  necessarily  state  just 
how  it  should  be  done.  Specifications  should  look  to  the  accom-  specifications,  <Pur- 
plishment  of  an  end  rather  than  to  the  means  of  its  attainment.  Of 
course,  there  are  exceptions  to  this,  as  when  the  engineer  believes 
that  for  the  best  results  certain  work  must  be  performed  in  some  par- 
ticular way,  in  which  case  it  is  necessary  to  incorporate  the  method 
in  the  specifications.  It  must  be  remembered  that  under  these  Guaranty  of  Results 
circumstances  the  contractor  cannot  be  held  responsible  for  the 
mistakes  of  the  engineer.  When  an  engineer  specifies  that  a  thing 
shall  be  done  in  a  certain  way,  he  must  assume  the  responsibility  of 
the  outcome,  because  the  contractor  is  not  free  to  adopt  the  method 
lie  thinks  best  suited  to  the  case  in  hand.1  For  this  reason  specifica- 
tions should  leave  the  method,  as  far  as  can  be  done  consistently,  to 
the  contractor,  and  instead  should  dwell  upon  the  end  to  be  attained. 
A  good  contractor  who  is  active  and  progressive  may  frequently 
wish  to  introduce  methods  of  construction  better  than  those  con- 
ceived by  the  engineer,  and  it  were  a  poor  set  of  specifications  which 
would  prevent  his  doing  so.  A  specification  can  readily  be  very 
strict  concerning  the  finished  work  and  at  the  same  time  very 
liberal  as  to  the  methods  to  be  employed  in  its  accomplishment. 

It  frequently  happens   that   specifications  are  written   without  rians  Prepared  by 
any  accompanying  plans  at  all.    In  such  cases  it  is  usual  to  require  C 
ladders  to  submit  with  their  tenders  plans  more  or  less  detailed  of 
what  they  propose  to  do.    In  this  way  the  engineer  may  make  a 
choice    from    various    plans    presented    and    thus    obtain    what   he 
considers  the  best  of  a  number  of  ideas.     Specifications  of  this  kind 
will  have,  of  course,  very  little  or  nothing  at  all  to  do  with  the 
details  involved,  but  will  be  concerned  almost  entirely  with  the  final  Specifications  of  Re- 
desired  outcome.     In  other  words,  such  a  specification  will  consist  Sl 
very  largely  of  general  clauses,  those  of  a  specific  nature  being  either 


1  The  engineer  may  not  specify  in  detail  and1  then  exact  a  warranty  as 
to  results.     The  law  will  not  imply  a  warranty. 


SPECIFICATIONS    AND    CONTRACTS. 


Specialists 


Good   Specifications 


Specifications    Con- 
clusive 


entirely  eliminated  or  reduced  to  a  minimum.  This  method  of 
letting  contracts  without  any  accompanying  plans  is  by  no  means 
to  be  commended.1  A  good  engineer  does  not  want  other  people 
to  tell  him  what  to  use  or  what  to  do.  If  he  is  thorough  and  well 
posted  in  his  profession,  he  is  not  going  to  let  his  own  ideas  be 
superseded  by  those  of  a  contractor  who  furnishes  plans  with  his  bid. 
In  such  a  case  the  engineer  becomes  only  an  inspector,  who  simply 
passes  upon  the  work  and  determines  whether  or  not  it  fulfils 
requirements,  when  perhaps  much  of  the  work  is  entirely  at  variance 
with  his  own  ideas.  It  is  reasonable  to  suppose  that  an  engineer 
who  devotes  his  entire  time  to  designing  structures  of  a  particular 
kind  (and  no  one  man  will  attempt  to  cover  the  entire  field),  is- 
more  capable  of  arriving  at  the  best  design  for  a  given  case  than  a 
contractor  who  is  engaged  in  work  of  a  varied  nature,  and  who1 
perhaps  has  given  little  or  no  thought  to  the  designing  of  the 
particular  kind  of  structure  upon  which  he  desires  to  tender.  It  i& 
undoubtedly  a  fact  that  the  best  results  are  accomplished  when  the- 
plans  and  specifications  are  prepared  by  a  compstent  engineer,  and 
when  the  bidder  is  governed  by  their  requirements.2 

Let  us  consider  some  of  the  salient  features  of  good  specifica- 
tions. Primarily,  they  should  give  a  clear  and  concise  description 
of  the  work,  first  when  considered  as  a  whole,  and  then  in  detail,  no- 
part  being  slighted  in  this  description.  It  will  not  answer  for  the- 
engineer  to  suppose  that  the  contractor  will  do  things  as  a  matter 
of  course,  but  he  must  produce  a  specification  that  will  insure  their 
being  done.  A  contractor,  if  he  be  thoughtful  and  careful,  will  pay 
close  attention  to  every  detail  set  forth  in  the  specifications,  and  he 
should  make  his  bid,  expecting  to  fulfil  just  the  requirements 
enumerated  in  them,  no  more  and  no  less.  If  he  be  wise,  he  will 
not  bid  with  the  expectation  of  having  them  changed  to  conform 
to  his  convenience  or  his  notions  of  what  is  best.  The  engineer  is 
supposed  to  have  stated  in  his  specifications  just  what  he  wants,  and" 
no  prudent  contractor  will  tender,  expecting  his  own  ideas  to  prevail. 
If,  then,  upon  the  engineer  devolves  the  responsibility  of  determining 
the  work  to  be  done,  it  will  be  readily  seen  that  it  behooves  him  to- 
cover  the  entire  ground  in  his  specifications.  He  should  give  special 
attention  to  the  points  he  intends  to  require  absolutely  without 


1  It  may  be  prohibited  by  statutes,  charters,  and  ordinances  which  require 
a  standard  of  comparison  and  public  competition. 

2  Such  a  practice  is  sometimes  adopted  to  meet  statutes  requiring  public 
competition,  where  the  structure  or  machine  is  the  subject  of  a  monopoly — 
as  of  letters  patent. 


SPECIFICATIONS    AND    CONTRACTS.  5 

alteration  and  should  leave  no  possibility  for  doubt  in  the  mind  of 

the  contractor  as  to  what  will  be  expected  concerning  them.     He 

should  be  careful  to  set  forth  clearly  the  units  of  measure  to  be 

employed  and  what  is  to  be  considered  a  part  of  the  finished  work, 

as  distinguished  from  what  is  merely  accessory.1     If  extra  work  is  Extra  Work  Defined 

to  be  performed,  the  amount  of  which  it  is  impossible  to  determine 

in  advance,  the  greatest  care  should  be  exercised  in  denning  clearly 

just    what    shall  constitute     such    extra    work    and    in    fixing    the 

compensation  for  it.    Failure  to  do  this  is  frequently  a  source  of 

trouble  and  annoyance  that  might  be  avoided  by  careful  wording. 

Specifications    should   be    designed    to    secure    the   best   results  When  Results  are 

Wanted 
consistent   with   what   is   considered   good   practice.     It   is   possible 

to  make  requirements  of  such  a  nature  that  to  fulfil  them  would 
mean  an  enormous  outlay  of  money  not  at  all  proportionate  to  the 
result.  Such  clauses  in  a  specification  make  a  bidder  uneasy  and 
will  cause  him  to  add  to  his  bid  a  sufficient  amount  in  addition  to 
his  profit  to  insure  him  against  loss.  A  bidder  should  make  his 
tender  expecting  to  comply  with  the  conditions  of  the  specifications, 
and  expecting  that  his  fellow  bidders  will  do  the  same,  and  a  clause 
that  involves  an  unduly  strict  condition  is  liable  to  cause  him  either 
to  tender  high  or  to  bid  hoping  that  its  fulfilment  to  the  letter  will 
not  be  demanded.  In  nine  cases  out  of  ten  such  a  clause  will  bo 
dearly  paid  for. 

Absolute  perfection  is  not  to  be  expected,  but  the  very  best  that  Advantages  of  Lo- 
cality and  Market 

the  most  approved  practice  will  afford  should  govern  the  require- 
ments. An  engineer  must  lose  prestige  if  he  specify  things  which 
cannot  consistently  be  done,  and  by  inserting  such  requirements  he 
works  injury  to  all  parties  concerned.  In  the  matter  of  materials 
to  be  used  he  must  be  governed  by  the  locality  and  by  what  the 
market  has  to  offer.  He  may  be  unable  to  get  just  what  he  would 
like;  therefore  he  must  use  the  best  that  can  be  obtained.  These 
remarks  do  not  imply  that  the  engineer  should  be  satisfied  with 
any  makeshift  that  is  offered.  He  can  rest  assured  that  he  will  not 
receive  anything  letter  than  he  demands,  and  he  is  fortunate  if  he 
succeeds  in  getting  everything  as  good  as  he  specifies.  As  he  is  a 
large  factor  in  determining  what  shall  be  considered  good  practice, 
he  should  not  be  content  to  put  up  with  shoddy  stuff  when  better 
can  be  obtained.  As  in  all  business  relations,  moderation  with 
firmness  should  govern. 


1  False  works  should  not  usually  be  made  the  subject  of  public  letting, 
as  for  public  improvements. 


G 


SPECIFICATIONS    AND    CONTRACTS. 


Language  of  Specifi- 
cations 


Several    Contractors 


Favoritism 


Again,  specifications  should  be  written  in  simple,  plain  language 
without  any  attempt  at  rhetoric.  All  verbs  should  be  complete,  and 
no  words  should  be  omitted  on  the  assumption  that  they  are  under- 
stood. Of  course,  the  law  will  interpret  a  contract  or  a  specification 
in  accordance  with  what  the  court  decides  is  its  spirit,1  but  an 
engineer  should  not  rely  upon  this  to  guard  against  omission.  If 
the  specifications  are  properly  prepared,  there  should  be  no 
occasion  for  appealing  to  the  courts  to  decide  what  is  or  is  not  the 
spirit  intended.  While  such  documents  should  be  comprehensive, 
they  should  not  be  verbose,  and,  above  all  things,  they  must  not  be 
ambiguous.  Short  sentences  and  simple  words  are  preferred. 
Punctuation  and  grammar,  while  usually  and  erroneously  considered 
of  minor  importance  in  an  engineer's  practice,  certainly  play  an 
important  part  in  this  particular  kind  of  literature.  The  meaning 
of  a  sentence  can  easily  be  distorted,  or  even  entirely  changed,  by 
the  placing  of  a  comma.  Do  not  fear  to  repeat  the  same  words  or 
phrases  over  and  over  again  in  your  specifications,  if  you  find  they 
best  convey  the  idea  you  have  in  mind.  This  may  involve  occasion- 
ally some  lack  of  euphony,  but  that  can  very  readily  be  dispensed 
with  in  writings  of  such  a  prosaic  nature. 

Should  more  than  one  contractor  be  employed  upon  a  piece  of 
work,  great  care  must  be  exercised  to  define  clearly  the  duties  of 
each.  Just  where  one  is  to  finish  and  the  other  is  to  begin  should 
be  set  forth  so  as  to  leave  no  possibility  of  doubt.  When  practicable 
in  such  cases,  separate  and  distinct  specifications  for  the  different 
parts  of  the  work  should  be  prepared.  Care  should  be  taken  that  the 
same  thing  is  not  required  of  both  contractors,  and  that  one  con- 
tractor is  to  leave  his  part  of  the  work  in  such  shape  as  to  involve 
no  hardship  or  inconvenience  for  the  one  who  is  to  follow.  As  an 
illustration  of  cases  of  this  kind,  in  bridge  work  it  frequently 
happens  that  one  contractor  will  do  the  substructure  work  while 
another  will  build  the  superstructure.  It  is  then  necessary  to 
specify  who  is  to  set  the  anchor  bolts  and  anchorages. 

The  engineer  must  be  careful  about  putting  anything  into  his 
specifications  that  has  even  the  appearance  of  favoritism.  He  must 
be  constantly  on  his  guard  to  avoid  this,  for  his  position  is  such  that 
his  reputation  is  liable  to  suffer  if  he  deviate  in  the  least  from 
strict  fairness  to  all.  It  is  bad  policy,  generally  speaking,  to  require 
a  particular  brand  of  material  or  the  product  of  a  given  firm 
without  stating  that  other  material  will  be  accepted,  if,  upon  testing, 


1  The  intention  of  the  parties. 


SPECIFICATIONS    AND    CONTRACTS.  7 

it  be  found  of  equal  quality.  When  a  given  brand  is  well-known 
and  has  an  established  reputation,  it  is  sometimes  proper  to  specify 
that  it  shall  be  used  to  the  exclusion  of  other  makes,  but  usually 
it  is  best  to  set  a  standard  which  is  commensurate  with  the  best 
product  to  be  had,  and  then  to  accept  any  brand  which  meets  the 
requirements.1  An  exception  to  this  rule  is  permissible  when  speci-  Commercialism 
fying  paint  for  metal-work,  because,  unless  the  particular  brand 
be  stated,  the  contractor  is  liable  to  give  endless  trouble  by  offering 
for  test  inferior  brands,  and  the  result  is  very  likely  to  be  the 
adoption  of  a  paint  that  is  not  really  satisfactory.  Unscrupulous 
parties  are  ever  ready  to  give  the  engineer  a  bonus  in  case  he  use 
their  product,  and  that  engineer  is  fortunate  who  has  an  extensive 
practice  and  is  yet  entirely  free  from  all  charges  of  peccability. 
Where  one  man's  product  is  rejected  and  another's  used,  there  is  a 
great  temptation  on  the  part  of  the  disappointed  person  to  question 
the  fairness  of  the  proceeding.  An  engineer  once  guilty  of  crooked- 
ness is  badly  handicapped,  and  justly  so,  for  no  man  wishes  to 
entrust  the  expenditure  of  his  capital  to  one  who  is  not  absolutely 
above  suspicion.2 

To  insure  all  the  conditions  that  have  been  enumerated,  it  is    Engineer's  Prepara- 
tion 

evident  that  the  engineer  must  familiarize  himself  with  every  detail 
of  the  work  in  hand.  If  he  does  not  understand  it  himself,  it  is 
certain  that  he  will  not  succeed  in  getting  a  clear  idea  of  what  he 
wants  into  the  mind  of  another.  Even  when  the  scheme  is  perfected 
in  the  engineer's  mind,  it  is  difficult  sometimes  to  make  it  plain  to 
the  contractor. 

It  will  not  do  to  jump  at  hasty  conclusions,  for  very  often  Changed  Conditions 
one  finds  that  an  idea,  which  at  first  seemed  to  be  just  what  was 
wanted,  proves  utterly  untenable  when  considered  in  connection 
with  other  ideas  that  must  be  incorporated  in  order  to  produce  a 
finished  construction.  No  idea  for  a  specification  has  any  value 
until  it  has  been  fitted  into  the  proposed  structure,  and  is  found  to 
harmonize  with  all  the  other  requirements. 

It  is  usual  and  proper  in  specifications  to  insert  a  clause  allowing    Alterations 
the  engineer  the  privilege  of  changing  them  or  the  plans  as  the 
work   progresses,   but   it   is   desirable    for   all   concerned   that   the 
number  of  these  changes  be  reduced  to  a  minimum.    A  perfect  set 
of  specifications  would  render  such  a  clause  useless,  but  since  we 


1  If  materials  are  specified  by  name  and  not  by  tests  or  results,  the  con- 
tractor can  be  held  only  to  deliver  the  brand  or  kind  named. 

2  Commercialism  in  engineering  practice  is  pretty  certain  to  arouse  sus- 
picion. 


SPECIFICATIONS    AND    CONTRACTS. 


Precision 


Prior  Negotiations 
not  Pertinent 


Concealment  of 
Facts 


have  not  yet  attained  to  perfection,  we  must  have  some  means  of 
recourse,  bearing  in  mind,  however,  that  the  more  such  a  clause 
as  the  one  referred  to  is  brought  into  use,  the  farther  we  are  from 
the  ideal.1 

The  question  of  precision  is  one  which  should  never  be  lost 
from  sight.  If  the  engineer  is  to  maintain  his  prestige,  he  must  be 
precise.  It  will  not  do  for  him  to  say  "about  this"  or  "about  that," 
for  the  "about"  is  very  liable  to  assume  proportions  which  were 
never  dreamed  of  when  the  term  was  used.  Of  course,  there  are 
times  when  it  is  neither  necessary  nor  desirable  to  be  absolutely 
exact  in  requirements,  but  generally  speaking  the  word  'about" 
has  very  little  place  in  a  set  of  specifications.  What  is  put  into 
them  is  placed  there  with  the  idea  that  it  is  to  be  operative  and 
binding  in  the  construction  of  the  work,  and  it  is  the  duty  of  the 
engineer  first  of  all  to  impose  no  impossible  or  unwise  conditions,2 
and  next  to  see  that  what  he  has  required  is  fulfilled  to  the  letter. 

The  specifications  form  a  part  of  the  contract,3  and  when  the 
latter  is  signed,  the  contractor  agrees  to  all  the  conditions  they  set 
forth.  It  is  proper  to  assume  that  he  has  read  the  specifications 
and  is  familiar  with  their  requirements,  and  that  he  signs  the  con- 
tract and  makes  his  bond  with  the  full  knowledge  of  what  is  before 
him.4  A  specification  should  never  hide  from  the  contractor  difficul- 
ties that  are  likely  to  be  encountered.  On  the  contrary,  when  such 
difficulties  are  known  to  the  engineer,  they  should  be  specially  called 
to  the  contractor's  notice,  so  that  he  may  bid  more  intelligently. 
His  attention,  however,  should  not  be  drawn  to  them  in  such  a  way 
as  to  frighten  him  and  to  cause  him  to  make  a  bid  abnormally  high, 
but  the  facts  as  they  exist  and  are  known  to  the  engineer  should 
be  stated.  As  in  all  relations  in  life,  straightforward,  fair-and-square 
dealing  is  by  far  the  best  policy.  No  railroad  company  or  other 
corporation  is  benefitted  by  letting  a  contract  for  a  sum  below  the 
actual  cost,  plus  a  reasonable  percentage  for  profit,  since  the  delays 
incident  to  the  contractor's  failure,  and  the  litigation  that  is  likely 
to  arise  will  more  than  counterbalance  the  supposed  saving.  No 
contractor  who  is  losing  money  is  going  to  make  the  same  exertion 
to  accomplish  his  task  properly  as  one  who  realizes  that  he  is 
earning  a  fair  profit. 


1  Powers  of  an  engineer  to  make  changes  should  be  limited  to  the  details 
of  construction  and  of  materials. 

2  And  as  few  ir  the  alternative  as  possible. 

3  They  should  be   made  so  by   the  text. 

4  He  may  be  held  to  the  terms,  if  he  has  not  read  them. 


SPECIFICATIONS    AND    CONTRACTS.  9 

In  spite  of  every  precaution  that  may  be  taken,  it  is  almost  Engineer's  Mistakes 
impossible  to  avoid  mistakes  entirely.  A  given  proposition  may 
appear  to  the  engineer  in  his  office,  before  work  has  commenced,  very 
•different  from  what  he  finds  it  in  the  field  after  the  construction  has 
begun.  When  an  engineer  discovers  that  he  has  made  a  mistake,  he 
should  not  hesitate  to  acknowledge  it,  and  to  set  about,  as  best  he 
may,  to  correct  the  error.  He  should  lose  no  opportunity  to  check 
against  errors,  and  should  be  thankful  when  they  are  discovered  in 
time  to  prevent  harm.  To  reduce  mistakes  to  a  minimum,  the 
engineer  must  be  thoroughly  conversant  with  all  contingencies  likely 
to  arise  in  the  execution  of  the  work.  He  should  familiarize  him- 
self with  the  appliances  ordinarily  employed,  and  should  so  design 
his  work  that  their  use  will  not  be  prohibited.  In  writing  his  specifica- 
tions and  in  making  the  plans,  he  should  have  a  clear  and  complete 
mental  picture  of  just  what  he  is  striving  to  attain.  It  must  be 
remembered  that  if  the  specifications  are  lived  up  to,  they  will 
entirely  determine  the  result,  and  that  it  is  the  plans  and  specifica- 
tions wherein  the  creative  power  of  the  engineer  asserts  f  itself . 

Finally,  when  all  is  said  and  done,  common  sense  must  govern  Ultimate  Object 
the  interpretation  and  execution  of  any  set  of  specifications.    All 
should  have  but  one  object  in  view — the  production  of  a  structure 
that  will  be  a  credit  to  every  one  concerned. 

Up  to  this  point  I  have  been  dealing  mainly  with  generalities,  generta^and  sPecial 
but  now  I  shall  go  more  into  detail,  taking  up  first  general  clauses 
and  later  specific  ones.  These  general  clauses  will  be  ample  for  all 
-engineering  specifications,  and  can  therefore  be  used  for  all  kinds 
of  engineering  construction;  but  it  would  be  impossible  to  cover 
the  entire  ground  of  specific  clauses,  consequently  I  shall  simply 
-quote  some  characteristic  ones  from  specifications  for  different  kinds 
of  .construction,  and  point  out  some  of  their  peculiar  features  and 
raisons  d'&tre.  Naturally,  in  offering  you  examples  of  specifications, 
I  shall  utilize  some  of  those  prepared  by  my  firm,  and  shall  trust 
that  you  will  pardon  me  for  so  doing,  because  I  am  responsible  for 
them,  while,  of  course,  I  could  not  be  accountable  for  the  correctness 
of  everything  in  case  I  were  to  quote  from  the  specifications  of  other 
engineers.  In  order  to  present  to  you  a  wide  range  of  specific  Subjects  for  Study 
clauses,  I  shall  make  extracts  from  specifications  for  bridge  super- 
structures, bridge  substructures,  steel  lighthouses,  an  ocean  pier,  and 
a  steel  pipe-line.  From  a  study  of  these  you  will  be  aided  materially 
in  the  preparation  of  specific  clauses  for  any  class  of  construction 
on  which  you  may  be  engaged. 


10  SPECIFICATIONS    AND    CONTRACTS. 

Ground  Covered  by          But  first,  in  order  to  give  you  an  idea  of  the  ground  which  a 

Thorough  Bridge 

Specifications  thorough  set  of  specifications  must  cover,  let  me  read  to  you  the 

alphabetical  list  of  headings  in  our  "Specifications  for  the  Rebuilding 
of  Ten  Bridges  on  the  International  and  Great  Northern  Railroad": 
Titles  Accompanying  Drawings;   Adherence  to  Specifications;    Altera- 

tion of  Plans;  Anchor-Bolts;  Annealing;  Approximate  Quantities 
of  Materials,  etc.;  Back  Filling;  Bank  Protection;  Bending  Tests; 
Bond;  Built  Members;  Caissons  Sunk  by  Pneumatic  Process;  Cast 
Iron;  Cast  Steel;  Cement;  Closing  Thoroughfares;  Coffer-Dam 
Work;  Company;  Composition  of  Rolled  Steel;  Concrete;  Concrete 
Piers  and  Abutments;  Construction;  Contract;  Damages;  Defective 
Work;  Depths  of  Foundations;  Directions  to  Contractor;  Drawings; 
Drifting  Tests;  Dry  Surfaces  in  Concrete;  Elastic  Limits;  Elonga- 
tion; Encountering  Obstacles;  Engineer;  Excavation;  Extras;  Eye- 
Bars;  Falsework;  Field  Riveting;  Filling  Column  Feet;  Final 
Inspection;  Floors;  Fracture;  General  Description;  General  Pro- 
visions on  Methods  of  Testing;  Granitoid;  Hauling  over  Company's 
Lines;  Identification;  Inspection;  Interference  with  Traffic;  Liqui- 
dated Damages;  Location;  Loss  of  Metal;  Metal;  Modus  Operandl 
of  Construction;  Name-Plates;  Number  of  Test  Pieces;  Paint; 
Painting;  Payments;  Pile  Foundations;  Piles;  Pin-Holes;  Pin 
Metal;  Pins;  Position  of  Piers,  Pedestals,  and  Abutments;  Prices 
of  Materials;  Punching  and  Reaming;  Reduction  of  Area; 
Re-Entrant  Corners;  Removal  of  Old  Piers;  Responsibility  for 
Accidents;  Return  of  Papers;  Rivet-Holes;  Rivets;  Rolled  Steel; 
Rollers;  Routing  of  Materials;  Scope  of  Contract;  Sheared  Edges; 
Shipping;  Spirit  of  the  Specifications;  Steel  Cutting  Edges; 
Strictness  of  Inspection;  Tenders;  Tensile  Strength;  Tests  of  Full- 
Sized  Eye-Bars;  Tests  of  Full-Sized  Members  or  Details;  Timber; 
Time  of  Completion;  Turn-Buckles,  Nuts,  Threads,  and  Washers; 
Turned  Bolts;  Use  of  Old  Rails;  Variation  in  Weight;  Workmanship; 
Wrought  Iron. 

Although  I  have  omitted  ten  headings  that  simply  enumerate 
the  various  crossings,  the  list  contains  nearly  one  hundred  clauses, 
only  seventeen  of  which  may  properly  be  termed  general.  The  latter 
I  shall  now  proceed  to  read  and  discuss  in  the  order  in  which  they 
appear  in  this  particular  set  of  specifications. 

ADHERENCE  TO  SPECIFICATIONS. 

FSiiCowCedti0nS  t0  be  "An  the  work  herein  outlined  is  to  be  done  in  strict  accordance 
with  the  specifications,  the  accompanying  plans,  and  such  instruc- 
tions as  may  be  given  from  time  to  time  by  the  Company's  engineers. 


SPECIFICATIONS    AND    CONTRACTS.  11 

Bidders  are  hereby  warned  that  they  will  be  held  strictly  to  the 
spirit  of  these  specifications,  and  that  it  will  be  bad  policy  for 
any  one  to  bid  with  the  expectation  that  concessions  will  be  made 
after  the  contract  is  closed,  in  order  that  the  work  may  be  cheapened; 
for  while  the  Company's  engineers  desire  to  aid  the  Contractors 
in  every  legitimate  manner  to  do  their  work  expeditiously  and 
economically,  at  the  same  time  they  have  given  these  plans  and 
specifications  the  most  thorough  consideration,  and  know  exactly 
what  they  need  in  respect  both  to  design  and  to  quality  of  materials 
and  workmanship.  On  this  account,  bidders  are  respectfully 
requested  not  to  complicate  their  tenders  by  putting  in  alternative 
bids  based  upon  proposed  changes  in  either  plans  or  specifications, 
because  such  alternative  bids  will  not  be  considered." 

This  clause,  which  is  common  to  all  of  our  specifications,  was  Alterations  to  be 

Avoided 
originated  by  me  some  ten  years  ago,  in  order  to  prevent  bidders 

from  trying  to  modify  our  plans  and  specifications  by  offering  some 
of  their  own  for  the  purpose  either  of  cheapening  the  work  or  of 
giving  the  bidder  an  advantage  over  his  competitors.  Promoters  of 
enterprises  are  too  prone  to  listen  to  the  specious  arguments  of 
bidders  when  they  contend  that  they  are  better  posted  upon  what  is 
needed  than  are  the  engineers.  Whenever  the  promoters  permit 
themselves  to  be  influenced  by  such  arguments  they  are  certain  to 
come  to  grief.  Contractors  work  for  their  own  interests,  and  it  is 
right  that  they  should  do  so;  but  they  ought  not  to  claim  that  their 
advice  is  unprejudiced  and  is  offered  for  the  sole  purpose  of  improv- 
ing the  construction;  when  they  do,  they  are  not  speaking  the 
truth.  For  many  years  I  have  had  to  struggle  constantly  and  vigor-  Effect  of  Changes 
ously  against  such  attempts  of  bidders  and  contractors  to  change 
my  plans  and  specifications,  and  on  more  than  one  occasion  I  have 
had  to  take  the  stand  that  either  the  promoter  must  refuse  to  enter- 
tain the  bidders'  suggestions  or  that  I  must  resign  my  position.  In 
one  of  these  instances  there  were  involved  some  two  million  dollars' 
worth  of  work;  and  I  came  within  an  ace  of  losing  the  engineering 
on  it  by  my  absolute  refusal  to  consider  the  fundamental  changes 
in  my  plans  and  specifications  that  were  proposed  by  the  bidders. 
By  adopting  the  preceding  clause  and  by  adhering  strictly  to  its 
context,  I  have,  after  many  years,  succeeded  in  preventing  any  more 
such  attempts  to  upset  my  work.  Of  course,  in  minor  matters  when 
a  contractor  offers  politely  any  reasonable  suggestion  tending  toward 
the  modification  of  my  requirements,  I  am  always  ready  to  consider 
it,  and  I  never  refuse  to  accede  to  such  a  request,  if  it  be  proved 


12 


SPECIFICATIONS    AND    CONTRACTS. 


Detail   Drawings 


Drawings  to  be  Veri- 
fied 


Contractor's  Details. 


Engineer's  Details 


Responsibility  for 
Errors 


that  the  change  is  either  beneficial  or  at  least  not  detrimental  to  the 
construction.1 

DRAWINGS. 

"As  soon  as  practicable  after  the  signing  of  the  contract  for 
rebuilding  the  structures,  complete  detail  drawings  will  be  furnished 
by  the  Engineer,  and  from  these  the  Contractor  is  to  prepare  his 
working  drawings,  complying  carefully  therewith,  and  making  no 
changes  without  the  written  consent  of  the  Engineer.  The  working 
drawings  are  to  be  sent  in  triplicate  for  the  approval  of  the 
Engineer,  who  will  retain  two  sets  and  return  the  third  after 
checking  same  and  marking  thereon  any  changes  or  corrections 
desired;  after  which  a  corrected  set  of  working  drawings  shall  be 
sent  without  delay  by  the  Contractor  to  the  Engineer.  The  approval 
of  the  said  working  drawings  by  the  Engineer  will  not  relieve  the 
Contractor  from  the  responsibility  of  any  errors  thereon. 

The  drawings  furnished  by  the  Engineer  shall  be  checked 
carefully  by  the  Contractor  before  beginning  work.  Should  any 
errors  be  discovered,  the  Engineer's  attention  shall  be  called  to  same, 
and  corrections  will  be  made,  after  which  the  Contractor  shall  be 
responsible  for  all  errors  which  may  occur  or  which  may  have 
occurred.  The  Engineer  shall  have  the  right  to  alter  as  he  may  see 
fit  the  preliminary  plans,  if  further  investigation  of  the  conditions 
affecting  the  proposed  structure  so  warrant;  and  he  shall  be  at 
liberty  to  make  minor  changes  in  all  plans  during  construction 
without  any  charge  being  made  for  same  by  the  Contractor,  unless, 
in  the  opinion  of  the  Engineer,  the  Contractor  be  really  entitled  to 
extra  compensation  on  account  of  such  changes. 

The  Contractor  shall  furnish  without  charge  as  many  sets  of 
working  drawings  as  the  Engineer  and  other  officers  of  the  Com- 
pany may  deem  necessary  for  their  use  during  construction  or  for 
record. 

Should  the  Engineer  prepare  any  working  drawings,  they  shall 
be  checked  carefully  by  the  Contractor;  and,  if  any  errors  be  discov- 
ered, the  Engineer's  attention  shall  be  called  thereto.  After  the 
proper  corrections  of  these  are  made,  the  Contractor  shall  be 
responsible  for  all  errors  which  may  occur  or  which  may  have 
occurred."2 

It  may  at  first  thought  appear  a  little  arbitrary  to  hold  the 


1  Material  changes  often  affect  the  rights  and  liabilities  of  the  parties, 
and   lead  to  complications,   in  case  of   litigation. 

2  This  would  doubtless  apply  only  to  errors  in  working  drawings. 


SPECIFICATIONS    AND    CONTRACTS.  13 

Contractor  responsible  for  any  errors  that  there  may  be  in  the 
Engineer's  plans,  but  a  little  consideration  will  show  that,  if  there 
are  any  such  errors,  they  ought  to  be  discovered  before  work  is 
started,  and  that,  as  the  Contractor  is  to  attend  to  the  construction, 
he  ought  to  make  sure  in  advance  that  the  entire  scheme  is  correct 
in  every  particular;  who  is  there,  then,  so  suitable  as  he  to  do  the 
checking  and  to  correct  the  mistakes?1. 

It  is  not  a  good  plan  for  the  Engineer  to  prepare  shop-drawings  Shop-Drawings 
for  metal-work,  because  no  two  shops  have  exactly  the  same  method 
of  making  working  drawings;  those  suitable  for  one  manufacturing 
company  would  not  be  acceptable  to  another.  It  is  therefore  much 
better  for  the  Engineer  to  draft  complete  detail  plans,  then  submit 
them  to  the  Contractor  as  a  guide  for  the  preparation  of  the  shop- 
drawings. 

INSPECTION. 

"The  inspection  and  tests  of  metal  will  be  made  promptly  on  its  Inspection,  Facilities 

for 
being  rolled  or  cast,  and  the  quality  will  be  determined  before  it 

leaves  the  rolling-mill  or  foundry.  The  inspection  of  workmanship 
will  be  made  as  the  manufacture  of  the  material  progresses,  and  at 
as  early  a  period  as  the  nature  of  the  work  will  permit. 

All  facilities  for  inspection  of  metal  and  workmanship  shall  be 
furnished  by  the  Contractor;  and  the  Engineer  and  his  inspectors 
shall  have  free  access  to  all  parts  of  the  plant  in  which  any  portion 
of  the  metal  is  being  made. 

The  Contractor  shall  give  the  Inspector  due  notice  when  any  Notice  of,  and  Delay 
metal   is   ready    for    inspection.     Any    delay   on   the   part   of    the 
Inspector  shall  be  reported  to  the  Engineer,  but  no  material  will  be 
accepted  which  has  not  been  passed  upon  by  the  authorized  repre- 
sentative of  the  Engineer. 

All  other  materials  than  metal  used  on  the  work  shall  be  Field  Inspection 
inspected  after  delivery  at  site,  unless  the  Contractor  shall  elect  to 
have  any  materials  inspected  elsewhere,  in  which  case  the  said 
materials  shall  be  inspected  by  the  Engineer  at  the  places  designated 
by  the  Contractor;  but  all  expenses  connected  with  such  inspection 
shall  be  borne  by  the  Contractor,  and  shall  be  paid  promptly  from 
time  to  time  upon  presentation  of  bills  for  same." 

The  reason  for  stipulating  that  all  materials  excepting  metal  ^gense  of  InsPec- 
shall  be  inspected  at  site,  unless  the  Contractor  elect  to  have  the 
inspection   done   elsewhere   at  his   own  cost,   is   that  without  this 


1This  may  be  true  in  steelwork,  but  it  will  not  hold  in  all  classes  of 
construction  work. 


14 


SPECIFICATIONS    AND    CONTRACTS. 


Final  Inspection 


Defects  to  be  Made 
Good 


Inspection  and  Ac- 
ceptance 


Foreman   in    Charge 


restriction  there  would  be  no  end  to  the  expense  to  which  an 
Engineer  would  be  put  in  sending  inspectors  all  over  the  country 
to  stone  quarries,  cement  manufactories,  sand  pits,  lumber  mills,  and 
forests. 

FINAL  INSPECTION. 

"Before  the  completed  work  on  each  bridge  is  accepted  and  paid 
for  in  full,  the  Contractor  shall  notify  the  Engineer  in  writing  that 
it  is  ready  for  final  inspection.  Upon  receipt  of  this  notification, 
the  Engineer  will  arrange  to  give  the  entire  work  on  the  said  bridge 
a  minute  and  thorough  inspection,  either  in  person  or  through  a 
competent  representative  who  has  not  been  employed  regularly  on 
this  special  work.  Any  defects  or  omissions  noted  during  this 
inspection  must  be  made  good  by  the  Contractor,  without  extra 
charge,  before  the  work  will  be  accepted  and  paid  for  in  full." 

The  reason  for  specifying  that  the  final  inspection  shall  not 
be  made  by  the  resident  engineer  is  that  no  man  can  well  check  or 
inspect  his  own  work,  because  he  will  be  almost  certain  to  overlook- 
any  errors  or  omissions  that  had  previously  escaped  his  notice. 

DEFECTIVE  WORK. 

"The  Contractor,  upon  being  so  directed  by  the  Engineer,  shall 
remove,  rebuild,  or  make  good,  without  charge,  any  work  which 
the  said  Engineer  may  consider  to  be  executed  defectively.  The  fact 
that  any  defective  material  in  the  structure  had  been  accepted  pre- 
viously by  the  oversight  of  the  Company's  Engineers  or  Inspectors- 
shall  not  be  considered  a  valid  reason  for  the  Contractor's  refusing 
to  remove  it  or  to  make  it  good.  And  until  such  defective  work  is 
removed  and  made  good,  the  Engineer  shall  deduct  from  the  partial 
payments  or  the  final  payment,  as  the  case  may  be,  whatever  sum 
for  such  defective  work  as  may,  in  his  opinion,  appear  just  and 
equitable." 

Many  contractors  object  strenuously  to  the  clause  which  forces 
them  to  remove  and  replace  any  defective  work,  claiming  that  any- 
thing which  is  once  passed  is  accepted  finally,  and  that  if  it  has  to  be 
rebuilt,  the  extra  work  involved  should  be  paid  for  by  the  Company. 
But  if  such  an  arrangement  as  this  were  to  rule,  it  would  act  as  an 
incentive  for  contractors  to  attempt  to  bribe  the  inspectors,  and 
would  leave  the  Company  without  recourse  from  the  results  of  the 
latter's  dishonesty. 

DIRECTIONS  TO  CONTRACTOR. 

"In  case  the  Contractor  shall  not  be  present  upon  the  work  at 
any  time  when  it  may  be  necessary  for  the  Engineer  to  give  instruc- 


SPECIFICATIONS    AND    CONTRACTS.  15 

tions,  the  foreman  in  charge  for  the  time  being  shall  receive  and 
obey  any  orders  that  the  Engineer  may  give.. 

The   Contractor  shall    commence  work  at  such  points  as   the    Progress 
Engineer  may  direct,  and  shall  conform  to  his  directions  as  to  the 
order  and  time  in  which  the  different  parts  of  the  work  shall  be 
done,  as  well  as  to  the  force  required  to  complete  the  work  at  the 
date  specified. 

CLOSING  THOROUGHFARES. 

The  Contractor  and  his  employees  shall  so  conduct  their  opera-    Thoroughfares 
tions  as  not  to  close  any  thoroughfare  by  land  or  water  without  the 
written  consent  of  the  proper  authorities  of  such  thoroughfare. 

RESPONSIBILITY  FOR  ACCIDENTS. 

The  Contractor  shall  assume  all  responsibility  for  accidents  to  Accidents 
men,  animals,  materials,  and  trains  before  the  acceptance  of  the 
structure;  and  must  remove  at  his  own  expense  all  false-work, 
rubbish,  or  other  debris  caused  by  his  operations;  and  such 
work  shall  be  included  as  a  part  of  the  work  to  be  performed. 
The  Contractor  shall  place  sufficient  and  proper  guards  for  the 
prevention  of  accidents,  and  shall  put  up  and  maintain  at  night 
suitable  and  sufficient  lights. 

DAMAGES. 

The  Contractor  shall  indemnify  and  save  harmless  the  Company  indemnity 
against  all  claims  and  demands  of  all  parties  whatsoever  for 
damages  or  compensation  for  injuries  arising  from  any  obstructions 
erected  by  the  Contractor  or  his  employees,  or  from  any  neglect  or 
omission  to  provide  proper  lights  and  signals  during  the  construc- 
tion of  the  work. 

ALTERATION  OF  PLANS. 

The  Engineer  shall  have  the  power  to  vary,  extend,  increase,  or    Alterations  and 

Compensation 
diminish  the  quantity  of  the  work  or  to  dispense  with  a  portion 

thereof  during  its  progress  without  impairing  the  contract,  and  no 
allowance  will  be  made  the  Contractor  except  for  the  work  actually 
done.  In  case  any  change  involve  the  execution  of  work  of  a  class 
not  herein  provided  for,  the  Contractor  shall  perform  the  same,  and 
shall  be  paid  the  actual  cost  thereof  plus  the  percentage  for  profit 
agreed  upon  in  the  contract.  In  this  case  the  Contractor  must 
furnish  the  Engineer  with  satisfactory  vouchers  for  all  labor  and 
material  expended  on  the  work. 


16 


SPECIFICATIONS    AND    CONTRACTS. 


Inspection 


Intent 


Progress    Payments 


Liens  Discharged 


STRICTNESS  OP   INSPECTION. 

All  materials  and  workmanship  will  be  inspected  thoroughly 
and  carefully,  and  the  Contractor  will  be  held  at  all  times  to  the 
spirit  of  the  specifications;  but  nothing  will  be  done  by  the  Com- 
pany's engineers  or  inspectors  to  give  the  Contractor  needless  worry 
or  annoyance,  the  intent  of  both  specifications  and  inspection  being 
simply  to  obtain  for  the  Company  work  that  will  be  first-class  in 
every  particular  and  a  credit  to  every  one  connected  with  its 
designing  and  construction." 

This  clause  contains  in  a  nutshell  the  entire  code  of  ethics 
which  should  govern  the  Engineer  in  his  dealings  with  the  Con- 
tractor. 

SPIRIT  OP  THE   SPECIFICATIONS. 

"The  nature  and  spirit  of  these  specifications  are  to  provide  for 
the  work  herein  enumerated  to  be  fully  completed  in  every  detail  for 
the  purpose  designed;  and  it  is  hereby  understood  that  the  Con- 
tractor, in  accepting  the  contract,  agrees  to  furnish  any  and  every- 
thing necessary  for  such  construction,  notwithstanding  any  omission 
in  the  drawings  or  specifications." 

It  may  seem  unfair  to  bind  the  Contractor  to  furnish  things  not 
called  for  in  the  specifications;  but  the  clause  is  intended  to  cover 
only  such  things  as  are  absolutely  necessary  for  the  work  and  which 
were  evidently  overlooked  when  the  bidding  papers  were  prepared. 

PAYMENTS. 

"Payments  for  work  shall  be  made  as  follows:1 
On  or  about  the  first  day  of  the  month  the  Engineer  will  estimate 
the  value  of  the'  work  done  and  materials  furnished;  and  within 
twenty-five  (25)  days  thereafter,  eighty-five  (85)  per  cent,  of  the 
value  thus  determined,  less  previous  payments,  shall  be  paid  to  the 
Contractor  in  cash.  Upon  the  completion  of  each  bridge  involved  in 
the  contract,  and  upon  acceptance  of  same  in  writing  by  the  Com- 
pany, the  balance  due  the  Contractor  for  the  said  bridge  shall  be 
paid  to  the  said  Contractor  in  cash. 

Before,  however,  the  final  payment  on  any  bridge  is  made,  the 
Contractor  shall  show  to  the  Company  satisfactory  evidence  that  all 
just  liens,  claims,  and  demands  of  his  employees,  or  of  parties  from 
whom  materials  used  in  the  construction  of  the  work  may  have  been 
purchased  or  procured,  are  fully  satisfied;  and  that  the  materials 
furnished  and  work  done  on  the  structure  are  released  fully  from 
all  such  liens,  claims,  and  demands. 


1  These  clauses  are  more  frequently  made  a  part  of  the  contract. 


SPECIFICATIONS    AND    CONTRACTS.  17 

If,  too,  during  the  progress  of  the  work,  it  appear  that  the  Bills  to  be  Paid 
Contractor's  bills  for  labor  and  materials  are  not  being  paid,  the 
Company  shall  have  the  right  to  withhold  from  the  Contractor's 
monthly  payments  a  sufficient  sum  or  sums  to  guarantee  itself 
against  all  losses  from  mechanics'  and  other  possible  liens,  and  to 
apply  the  said  sum  or  sums  to  the  payment  of  such  debts. 

Or,  if  during  construction  it  appear  to  the  Engineer  that  the  Abandonment 
Contractor  is  not  making  proper  progress,  the  Company  shall  have 
the  right,  after  giving  the  Contractor  ten  days'  notice  in  writing,  to 
undertake  itself,  either  by  administration  or  by  letting  a  contract  to 
other  parties,  the  completion  of  the  said  work  which  is  being  thus 
neglected.  Should  the  Company's  work  cost  less  than  what  the 
Contractor  would  have  been  paid,  the  difference  shall  be  paid  to  the 
Contractor;  but  on  the  other  hand,  should  it  cost  more,  the  difference 
shall  be  charged  to  the  Contractor,  and  shall  be  taken  out  of  the 
reserved  fifteen  (15)  per  cent,  or  out  of  the  bond. 

Under  these  circumstances  the  Company  shall  have  the  right    Completion  by 

vjwncr 

to  enter  upon  and  take  temporary  possession  of  the  plant,  tools, 
materials,  and  suppTies  of  the  said  Contractor  or  any  part  thereof. 
In  case  that  the  percentage  of  earnings  withheld  by  the  Company 
be  insufficient  to  make  good  the  deficit,  the  Company  shall  have  the 
right  to  reimburse  itself  by  the  sale  of  the  Contractor's  plant;  but 
otherwise  the  said  plant  shall  be  returned  to  the  Contractor  after  the 
completion  of  the  work." 

The  number  of  days  that  may  elapse  between  the  time  of  Monthly  Estimate* 
preparing  the  monthly  estimates  and  the  date  of  payment  varies 
generally  from  ten  to  thirty,  according  to  the  attendant  conditions, 
it  being  necessary  to  allow  time  for  the  compilation  of  statistics, 
mailing  of  papers,  distribution  of  estimates,  and  forwarding  of 
checks. 

The  amount  retained  from  each  estimate  by  the  Company  until    Percentage  Retained 
the  completion  of  the  entire  contract  is  generally  ten  per  cent,  and 
never  more  than  fifteen  per  cent. 

It  is  one  of  the  most  important  duties  of  the  Engineer  to  make 
sure  that  his  clients  are  protected  against  mechanics'  and  other 
liens  upon  the  work,  and  he  will  have  to  be  ever  on  the  alert  to 
insure  this  when  dealing  with  irresponsible  or  tricky  contractors. 

The  handling  of  work  by  administration  is  generally  rather 
expensive  for  the  Company  and  burdensome  to -the  Engineer;  hence 
it  is  to  be  avoided  whenever  possible. 


18 


SPECIFICATIONS    AND    CONTRACTS. 


Extras 


Surety 


Contract 


-Return  of  Papers 


Example,  a  Bridge 


EXTRAS.1 

"No  extras  will  be  allowed  or  paid  for  unless  they  be  ordered  in 
writing  by  the  Engineer.  For  extras  so  allowed  the  Contractor  will 
be  paid  the  actual  cost  to  him  plus  ten  (10)  per  cent,  for  profit. 
Satisfactory  vouchers  will  be  required  from  the  Contractor  for  all 
extra  labor  and  materials." 

The  question  of  extras  is  always  likely  to  be  a  bone  of  conten- 
tion between  the  Contractor  and  the  Engineer;  consequently  the 
more  fully  it  is  covered  in  the  specifications  the  better  for  both 
parties. 

BOND. 

"The  successful  bidder  will  be  required  to  give  the  Company  a 

satisfactory  Surety  Company  Bond,  in  the  sum  of  dollars, 

for  the  faithful  performance  of  the  contract  and  specifications  and 
all  the  terms  and  conditions  therein  contained,  and  for  the  prompt 
payment  for  all  material  and  labor  used  in  the  manufacture  and 
construction  of  the  structures,  and  to  protect  and  save  harmless  the 
Company  from  all  damages  to  persons  or  property,  caused  by  the 
negligence  or  claim  of  negligence  by  the  Contractor,  his  agents, 
servants,  or  employees  in  doing  the  work,  or  in  connection  therewith. 
Each  bidder  must  state  in  his  tender  the  name  of  the  Surety 
Company  that  he  offers  for  furnishing  this  bond. 

CONTRACT. 

As  soon  as  possible  after  the  award  of  the  contract  is  made,  a 
contract  similar  to  that  outlined  on  the  accompanying  form  will  be 
presented  in  duplicate  to  the  successful  bidder  for  his  signature, 
after  which  both  copies  will  be  signed  by  the  Company,  and  one  of 
them  will  be  given  to  the  said  successful  bidder. 

RETURN  OF  PAPERS. 

All  papers  submitted  to  bidders,  excepting  only  those  of  the 
successful  bidder,  are  to  be  returned  to  the  Consulting  Engineers 
upon  demand." 

The  reason  why  the  unsuccessful  bidders  are  required  to  return 
the  papers  submitted  to  them  for  tendering  is  that  several  copies 
of  the  plans  and  specifications  will  be  required  later  for  those 
prosecuting  the  work,  -  and  this  return  of  papers  will  effect  an 
economy  in  copying. 

Before  leaving  the  subject  of  general  clauses,  I  shall  quote  a 
few  found  in  the  contract  (of  which  the  specifications  form  a  part). 


1  This  is  more  often  made  a  part  of  the  contract. 


SPECIFICATIONS    AND    CONTRACTS.  19 

The  division  of  the  entire  list  of  general  clauses  between  the  specifi- 
cations and  the  contract  is  purely  arbitrary.  My  firm  has  a  certain 
form  of  contract  of  its  own,  which  will  apply  to  any  and  all  of  our 
specifications  by  simply  filling  in  the  blank  spaces.  It  is  from  this 
form  that  I  am  about  to  quote  certain  paragraphs  in  order  to  com- 
plete my  list  of  general  clauses  that  will  apply  to  all  engineering 
specifications. 

CARE  OF  DELIVERED  MATERIAL. 

"All  material  paid  for  by  the  party  of  the  first  part  shall  be    Ownership    of   Ma- 
deemed  to  have  been  delivered  to,  and  to  have  become  the  property 
of  the  said  first  party,   but  the  party  of  the  second  part  hereby 
agrees  to  store   it  and  to  become  responsible  therefor  during  the 
•continuance  of  this  agreement." 

The  object  of  this  clause  is  to  make  the  Contractor  responsible 
for  the  care  and  insurance  of  all  materials  delivered  and  partially 
paid  for.  Without  some  such  provision  the  Company  would  have  to 
stand  all  losses  from  flood,  fire,  and  theft  before  the  completion  and 
acceptance  of  the  structure. 

EXTENSION  OF  TIME. 

"In  case  the  party  of  the  first  part,  notwithstanding  the  failure   Time  Limit  not 

uaivea 
of  the  party  of  the  second  part  to  complete  its  work  within  the  time 

specified,  shall  permit  the  said  second  party  to  proceed  and  continue 
and  complete  the  same  as  if  such  time  had  not  lapsed,  such  permis- 
sion shall  not  be  deemed  a  waiver  in  any  respect,  by  the  first  party, 
of  any  forfeiture  or  liability  for  damages  or  expense  thereby 
incurred,  arising  from  such  non-completion  of  said  work  within  the 
time  specified,  and  covered  by  the  "Liquidated  Damages"  clause  of 
the  specifications;  but  such  liability  shall  continue  in  full  force 
against  the  said  second  party,  as  if  such  permission  had  not  been 
granted." 

Without  some  such  clause  as  this  the  Contractor  when  allowed 
to  exceed  his  contract  time  might  claim  immunity  from  liquidated 
damages,  and  thus  render  that  clause  of  the  specifications  null  and 
void. 

CHANGE  OF  PLAN  OR  OF  CONTRACT. 

"No  change  or  alteration  shall  be  made  in  the  terms  or  conditions    Written  Order  for 

Extras 
of  this  agreement  without  the   consent  of  both  parties  hereto  in 

writing;  and  no  claim  shall  be  made  or  considered  for  any  extra 
work,  unless  the  same  shall  be  authorized  and  directed  in  writing 
by  the  Engineer,  as  herein  provided. 


SPECIFICATIONS    AND    CONTRACTS. 


No    Damages 
Delay 


EXTRA  COMPENSATION. 

for  In  the  event  of  any  delay  in  completing  the  work  embraced  in 

this,  contract,  the  party  of  the  second  part  shall  be  entitled  to  na 
extra  compensation  on  account  of  such  delay;  as  it  is  hereby 
assumed  that  in  submitting  its  tender  it  took  its  chances  for  the- 
occurrence  of  such  delay." 

This  is  an  unusual  clause  in  engineering  contracts,  having  been 
originated  by  me  some  years  ago.  The  usual  objection  to  it  is  that 
it  is  entirely  one-sided,  which  cannot  be  denied.  It  is  certainly 
likely  to  be  of  great  advantage  to  the  Company,  as  the  latter  is  often 
tied  up  by  litigation  and  sometimes  from  want  of  sufficient  funds- 
to  prosecute  the  construction  continuously  or  as  rapidly  as  desired. 
Of  course,  the  Engineer  in  applying  this  clause  must  use  his  judg- 
ment and  sense  of  equity  to  make  sure  that  it  does  not  involve  any 
real  hardship  for  the  Contractor.  Its  main  object  is  to  prevent  the 
latter  from  claiming  exemption  from  all  liquidated  damages  or 
from  demanding  extra  compensation  on  account  of  trifling  delays 
caused  either  by  the  Company  or  by  circumstances  beyond  the 
Company's  control. 

SUBCONTRACTING. 

"The  party  of  the  second  part  hereby  agrees  that  it  will  not 
assign  or  sublet  the  work  covered  in  this  contract,  or  any  portion  of 
it,  without  the  written  consent  of  the  party  of  the  first  part,  but  will 
keep  the  same  within  its  control. 

ARBITRATION    OF   DISPUTES. 

The  decision  of  the  Engineer  shall  control  as  to  the  interpreta- 
tion of  drawings  and  specifications  during  the  execution  of  the  work 
thereunder;  but  if  either  party  shall  consider  itself  aggrieved  by 
any  decision,  it  may  require  the  dispute  to  be  finally  and  conclusively 
settled  by  the  decision  of  three  arbitrators,  the  first  to  be  appointed 
by  the  party  of  the  first  part,  the  second  by  the  party  of  the  second 
part,  and  the  third  by  the  two  arbitrators  thus  chosen.  By  the 
decision  of  these  three  arbitrators,  or  by  that  of  a  majority  of  them, 
both  parties  to  this  agreement  shall  be  finally  bound." 

Arbitration  It  is  seldom  that  this  arbitration  clause  is  resorted  to,  for  the 

Engineer's  decisions  are  almost  invariably  just  and  reasonable. 
Only  once  in  my  entire  career  has  it  been  put  in  force  on  my  work, 
and,  as  in  this  instance  there  was  too  good  an  understanding  between 
the  promoter  of  the  enterprise  and  the  dealer  who  furnished  the 
rejected  materials,  I  lost  the  case. 


Assignment  For- 
bidden 


Engineer's    Decision 


SPECIFICATIONS    AND    CONTRACTS.  21 

NOTIFICATION   OF   IMPENDING    SUITS. 

"As,  according  to  the  terms  of  the  accompanying  specifications,  Indemnity 
which  form  a  part  of  this  contract,  the  party  of  the  second  part  is 
to  indemnify  the  party  of  the  first  part  against  all  liability  or 
damages  on  account  of  accidents  occasioned  by  the  omission  or 
negligence  of  itself,  or  its  agents,  or  its  workmen  during  'the  con- 
tinuance of  this  agreement,  and  is  to  pay  all  judgments  recovered 
by  reason  of  such  accidents  in  any  suit  or  suits  against  the  party 
of  the  first  part,  including  legal  costs,  court  and  other  expenses;  it  Litigation 
is  hereby  agreed  that  the  party  of  the  second  part  shall  be  promptly 
and  duly  notified  in  writing  by  the  party  of  the  first  part  of  the 
bringing  of  any  such  suit  or  suits,  and  shall  be  given  the  option 
of  assuming  the  sole  defense  thereof." 

This  provision  is  entirely  in  the  Contractor's  favor,  but  the  point 
involved  is  one  of  simple  equity;  for  if  he  is  to  pay  all 
damages  he  certainly  ought  to  be  allowed  to  handle  the  legal  fight  in 
his  own  way. 

And  now  I  shall  quote  some  specific  clauses  merely  to  illustrate   Specific  Clauses 
their  general  style  and  character;  for  it  is  obvious  that  it  would  be 
impracticable   in   a   lecture   like  this  to    attempt   to  cover   all   the 
specific  clauses  for  even  one  class  of  construction — much  less  for  all 
classes. 

The  following  clauses  are  taken  from  the  same  set  of  specifica- 
tions as  before: 

SCOPE   OF   CONTRACT. 

"The  contract  will  cover  the  following:  structures*  °^ 

1st.  Removal  of  old  spans,  marking  properly  all  the  pieces  of 
same,  and  piling  these  near  the  site  as  per  the  instructions  of  the 
Engineer. 

2d.  Removal  of  old  piers  and  portions  of  old  piers,  and  dis- 
tributing the  removed  masonry  as  rip-rap  around  the  piers  of  the 
same  bridges  from  which  the  said  masonry  was  taken,  all  in  accord- 
ance with  the  instructions  of  the  Engineer. 

3d.     The  furnishing  of  all  materials    (excepting  old  rails)    for    Old  Materials 
and  the  rebuilding  of  the  tops  of  old  piers  that  are  to  be  repaired. 

4th.  The  furnishing  of  all  materials  (excepting  old  rails)  for 
and  the  building  of  all  new  piers  and  abutments. 

5th.     The  furnishing  of  all  the  materials  (excepting  track  rails    New  Materials 
and  their  fastenings)   for  and  the  building  complete  of  all  the  new 
spans  required,  including  the  timber  floor. 


22  SPECIFICATIONS    AND    CONTRACTS. 

6th.  Providing  all  materials  for  and  building  all  falsework  to 
carry  the  old  fixed  spans  which  are  to  be  left  in,  while  the  support- 
ing piers  are  being  repaired,  and  removing  the  said  falsework  as 
soon  as  the  Engineer  gives  directions  for  such  removal. 

7th.  Laying  of  tracks  on  all  new  spans  and  connecting  same 
properly  to  the  approaches." 

Let  me  call  your  attention  to  the  clearness  and  conciseness  with 
which  the  various  items  in  this  clause  are  stated,  and  caution  you 
when  preparing  specifications  of  your  own  to  be  just  as  clear  in 
everything  relating  to  "Scope  of  Contract,"  for  this  is  one  of  the 
most  important  clauses  of  any  set  of  specifications. 

HAULING  OVER  COMPANY'S  LINES. 

Rights  of  Way  "There  will  be  no  charge  for  hauling  over  the  Company's  lines 

any  of  the  Contractor's  men,  materials,  or  plant." 

APPROXIMATE  QUANTITIES  OF  MATERIALS,  ETC. 

Statement  of  Quan-  "The  following  are  the  approximate  quantities  of  materials,  etc., 

cities 

in  the  ten  (10)  structures.     They  will  be  used  in  comparing  tenders 

for  awarding  of  contract,  but  are  not  to  be  considered  in  any  way 

binding  upon  the  Company  or  upon  its  Engineers: 

Structural  steel  in  new  pin-span,  erected 
and  painted 1,313,000  Ibs. 

Structural  steel  in  new  plate  girder  spans, 
erected  and  painted 6,586,000  Ibs. 

Timber  in   railway  floors 400  M.  feet,  B.  M. 

Length  of  single,  track  to  be  laid 4,300  lineal  feet. 

Old  spans  to  be  removed 3,311  lineal  feet. 

Old  masonry  to  be  removed 1,612  cubic  yards. 

Mass  in  caisson  and  crib  of  pneumatic  pier. .          1,360  cubic  yards. 

Mass  in  cribs  or  bases  of  all  other  piers. . .          2,800  cubic  yards. 

Concrete  in  bases  of  all  abutments  (no 
allowance  being  made  for  cost  of  excava- 
tion, coffer-dams,  pumping,  bailing,  etc.) .  2,100  cubic  yards. 

Concrete  in  shafts  of  piers  and  abutments. .        13,200  cubic  yards. 

Piles  in  place,  below  bottoms  of  cribs 16,200  lineal  feet. 

Length   of   old    spans   to   be   supported    on 

falsework    473  lineal  feet. 

Temporary  Works  There  will  be  no  allowance  for  excavation  or  for  back  filling,  as 

the  cost  of  these  items  must  be  covered  by  the  schedule  prices  for 

mass  of  foundations  and  piles  in  place. 

Neither  will  there  be  any  allowance  made  for  cost  of  removing 


SPECIFICATIONS    AND    CONTRACTS.  23 

old  wooden  trestle,  as  the  Contractor  will  utilize  the  same  for  false- 
work to  support  the  new  girders. 

Neither  will  there  be  any  allowance  made  for  the  placing  as 
rip-rap  around  the  piers  the  masonry  stones  removed  from  the 
existing  piers,  as  this  must  be  covered  by  the  schedule  price  for  the 
removal  of  masonry." 

Although  the  quantities  given  under  this  heading  are  generally  Quantities,  Approxi- 
approximate,  it  is  very  important,  nevertheless,  that  they  be  filled 
out;  because,  in  the  first  place,  they  give  bidders  a  proper  concep- 
tion of  the  magnitude  of  the  work,  and,  in  the  second  place,  they 
afford  a  means  of  comparing  bids  on  a  basis  that  is  perfectly  fair 
to  all  competitors. 

INTERFERENCE  WITH  TRAFFIC. 

"The  Contractor  must  so  conduct  all  of  his  operations  as  not  to  Traffic  interference 
interfere  at  all  with  the  passage  of  the  Company's  trains;  and  he 
must  take  every  precaution  against  accidents  to  the  said  trains 
caused  by  his  operations.  Should  any  accidents  occur  by  reason  of 
such  operations,  either  directly  or  indirectly,  the  Contractor  will  be 
held  responsible  both  pecuniarily  and  morally  for  the  results  of  such 
accidents." 

The  importance  of  this  clause  to  the  railroad  company  cannot 
be  overestimated.  Wherever  bridges  are  to  be  constructed  on  lines 
in  operation,  this  clause  should  under  no  circumstances  whatsoever 
be  omitted. 

REMOVAL  OF  OLD  PIERS. 

"In  taking  down  existing   piers  which  are  not  to  be  rebuilt,   Blasting 
small  charges  of  explosives  may,  with  the  consent  of  the  Engineer, 
be  used;  but  none  may  be  employed  for  removing  the  tops  of  piers 
that  are  to  be  rebuilt.     In  the  latter  the  greatest  of  care  must  be 
taken  not  to  injure  any  of  the  masonry  that  is  to  be  preserved. 

All  masonry  that  is  removed  from  the  old  piers  and  abutments 
must  be  disposed  of  as  rip-rap  for  piers,  or  otherwise  as  directed 
by  the  Engineer. 

METAL. 

Unless   otherwise   specified,   all   metal   shall   be   medium   steel,   Steel  and  iron 
excepting  only  that  rivets  and  bolts  are  to  be  of  soft  steel  and  adjust- 
able members  of  either  soft  steel  or  wrought  iron. 

Except  for  the  washers  for  floor  bolts,  cast  iron  will  not  be 
allowed  to  be  used  in  the  superstructure,  cast  steel  being  employed 
wherever  important  castings  are  necessary. 


OF   THE 

UNIVERSITY 

OF 


24 


SPECIFICATIONS    AND    CONTRACTS. 


Rolled  Steel 


Testing 


Retestlng 


Materials.   Re- 
wrought 


ROLLED    STEEL. 

All  steel  shall  be  manufactured  by  either  the  acid  or  the  basic 
open-hearth  process,  and  must  be  uniform  in  character  for  each 
specified  kind.  Any  attempt  to  substitute  Bessemer  or  any  other 
steel  for  the  open-hearth  product  will  be  considered  a  violation  of  the 
contract  and  a  good  and  sufficient  reason  for  cancelling  the  same. 

All  plates  shall  be  rolled  from  slabs.  These  slabs  shall  be  made 
by  a  separate  operation,  by  rolling  an  ingot  and  cutting  off  the  scrap. 
The  original  ingot  shall  have  at  least  twice  the  cross-sectional  area 
of  the  slab,  and  the  latter  shall  be  at  least  six  (6)  times  as  thick  as 
the  plate. 

All  finished  material  coming  from  the  mills  must  be  free  from 
seams,  flaws,  or  cracks;  and  must  have  a  clean,  smooth  finish. 

GENERAL  PROVISIONS  ON  METHODS  OF  TESTING. 

Rivet  rods  and  other  rounds  are  to  be  tested  in  the  form  in 
which  they  leave  the  rolls,  without  machining. 

Test  pieces  from  angles,  plates,  shapes,  etc.,  shall  be  rectangular 
in  shape,  with  a  cross-sectional  area  of  preferably  about  one-half 
(%)  of  a  square  inch,  but  not  less,  and  shall  be  taken  so  that  only 
two  sides  are  machine  finished,  the  other  two  having  the  surface 
which  was  left  by  the  rolls. 

Should  fracture  occur  outside  of  the  middle  third  of  the  gauge 
length,  the  test  is  to  be  discarded  as  worthless,  if  it  falls  below  the 
standard. 

If  any  test  piece  have  a  manifest  flaw,  its  test  shall  not  be  con- 
sidered. 

In  case  that  one  piece  fall  slightly  below  the  requirements  in 
any  particular,  the  Inspector  may  allow  the  retesting  of  the  lot  or 
heat  by  taking  four  (4)  additional  tests  from  the  said  lot  or  heat; 
and  if  the  average  of  the  five  shall  show  that  the  steel  is  within  the 
requirements,  the  metal  may  be  accepted;  otherwise  it  shall  be 
rejected. 

Drillings  for  chemical  analysis  may  be  taken  either  from  the 
preliminary  test  piece  or  from  the  finished  material. 

The  speed  of  the  machine  for  breaking  test  pieces  shall  not  be 
less  than  one-quarter  (}4)  inch  per  minute  nor  more  than  three  (3) 
inches  per  minute. 

Material  which  is  to  be  used  without  annealing  or  further  treat- 
ment is  to  be  tested  in  the  condition  in  which  it  comes  from  the 
rolls.  When  the  material  is  to  be  annealed  or  otherwise  treated 


SPECIFICATIONS    AND    CONTRACTS.  25 

before  being  used,  the  specimens  representing  such  material  may  be 
similarly  treated  before  testing;  but  they  shall  also  give  standard 
•elongation,  reduction,  and  fracture  before  annealing. 

BENDING   TESTS. 

"Speciments  of  soft  steel  shall  be  capable   of  bending  to  one  Bending  Tests 
hundred  and  eighty  (180)  degrees  and  closing  down  flat  upon  them- 
selves, without  cracking,  when  either  hot,  cold,  or  quenched. 

Specimens  of  medium  steel  when  heated  to  a  dark  orange  and 
cooled  in  water  at  seventy  (70)  degrees  Fahrenheit,  or  when  cold  or 
hot,  shall  be  capable  of  bending  one  hundred  and  eighty  (180) 
degrees  around  a  circle  whose  diameter  is  equal  to  the  thickness 
of  the  test-piece,  without  showing  signs  of  cracking  on  the  convex 
.side  of  the  bend. 

DRIFTING  TESTS. 

Punched  rivet  holes  in  medium  steel,  pitched  two  (2)   diameters  Drifting  Tests 
from  a  sheared  edge,  must  stand  drifting  until  their  diameters  are 
fifty    (50)   per  cent,  greater  than  those  of  the  original  holes,  and 
must  show  no  signs  of  cracking  the  metal. 

FRACTURE. 

All  broken  test  pieces  for  both  classes  of  steel  must  show  a  silky 
fracture  of  uniform  color. 

WORKMANSHIP. 

All  metal  shall  be  straightened  carefully  before  being  turned  Workmanship 
over  to  the  shops. 

All  workmanship  shall  be  first-class  in  every  particular,  and  all 
portions  of  metal-work  exposed  to  view  shall  be  neatly  finished. 

All  idle  corners  of  plates  and  angles,  such,  for  instance,  as 
the  ends  of  unconnected  legs  of  angle  lacing,  shall  be  neatly  cham- 
fered off  at  an  angle  of  about  forty-five  (45)  degrees,  so  as  to  give 
a  sightly  finish  to  the  work  and  to  avoid  bending  of  said  corners 
during  shipment  and  erection. 

As  far  as  practicable,  all  parts  shall  be  so  constructed  as  to  be 
accessible  for  inspection  and  painting. 

All  punched  work  shall  be  so  accurately  done  that,  after  the  Punching 
various  component  pieces  are  assembled  and  before  the  reaming  is 
commenced,  forty  (40)  per  cent,  of  the  holes  can  be  entered  easily 
by  a  rod  of  a  diameter  of  one-sixteenth  (1-16)  of  an  inch  less  than 
that  of  the  punched  hole;  eighty  (80)  per  cent,  by  a  rod  of  a  diameter 
of  one-eighth  (ya)  of  an  inch  less  than  same;  and  one  hundred  (100) 


26 


SPECIFICATIONS    AND    CONTRACTS. 


Field  Riveting 


Punching  and 
Reaming 


per  cent,  by  a  rod  of  a  diameter  one-quarter  (%)  of  an  inch  less 
than  same.  Any  shopwork  not  coming  up  to  this  requirement  will 
be  subject  to  rejection  by  the  Inspector." 

These  requirements  for  accuracy  in  punching  were  formulated 
some  six  years  ago  by  Mr.  Frank  C.  Osborn,  C.  E.,  of  the  Osborn 
Engineering  Co.,  and  by  me  working  jointly.  They  are  by  no  means 
too  severe,  and  yet  are  rigid  enough  to  insure  truly  first-class  shop- 
work.  It  is  only  the  good  shops,  though,  that  can  comply  with  such 
requirements. 

FIELD    RIVETING. 

"All  field  riveting  shall  be  done  by  pneumatic  riveters  of  a  type 
to  be  approved  by  the  Engineer,  except  in  places  where  it  is  imprac- 
ticable to  use  the  apparatus,  in  which  case  hand  riveting  will  be 
permitted." 

The  quality  of  pneumatic  riveting  is  far  superior  to  that  of 
hand  riveting  and  but  little  inferior  to  that  of  the  machine  riveting 
done  in  the  shops.  The  use  of  the  pneumatic  riveters  for  field 
work  has  permitted  the  adoption  of  much  longer  riveted  spans  than 
were  built  when  all  field  riveting  was  done  by  hand.  Not  only  are 
the  rivets  driven  by  the  pneumatic  machine  much  tighter,  but  more 
than  twice  as  many  can  be  driven  per  day  with  the  same  force  of 
men  as  compared  with  hand-driven  rivets. 

PUNCHING  AND  REAMING. 

"All  rivet-holes  in  steelwork,  if  punched,  shall  be  made  with  a 
punch  one-eighth  (y8)  inch  in  diameter  less  than  the  diameter  of 
the  rivet  intended  to  be  used,  and  shall  be  reamed  to  a  diameter 
one-sixteenth  (1-16)  inch  greater  than  that  of  the  said  rivet. 

Before  this  reaming  takes  place,  all  the  pieces  to  be  riveted 
together  shall  be  assembled  and  bolted  into  position,  then  the- 
reaming  shall  be  done;  for  one  of  the  principal  objects  of  this  clause 
in  relation  to  sub-punching  is  to  insure  the  correct  matching  of 
rivet-holes  and  the  avoidance  of  holes  of  excessive  diameter.  The 
said  clause  also  insures  the  removal  of  most,  if  not  all,  incipient 
cracks  started  by  the  process  of  punching. 

All  reaming  is  to  be  done  by  means  of  rigid  twist-drills,  the  use 
of  tapered  reamers  being  prohibited,  except  where  rigid,  twist- 
reamers  cannot  be  employed.  All  holes  must  be  at  right  angles  to 
surface  of  member,  and  all  sharp  or  raised  edges  of  holes  under 
heads  must  be  slightly  rounded  off  before  the  rivets  are  driven 

All  holes  for  field  rivets,  excepting  those  for  lateral  or  sway 


SPECIFICATIONS    AND    CONTRACTS.  27 

bracing,  when  not  drilled  to  an  iron  template,  shall  be  reamed  while 
the  connecting  parts  are  temporarily  assembled. 

Punching  shall  not  be  permitted  in  any  piece  in  which  the 
thickness  of  the  metal  exceeds  the  diameter  of  the  cold  rivet  that  is 
to  be  used;  but  all  such  pieces  shall  be  drilled  solid." 

For  the  last  ten  years  I  have  been  fighting  hard  to  have  all 
important  metal  sub-punched  and  reamed,  and  have  succeeded  as 
far  as  my  own  work  is  concerned;  for  the  Contractors  have  at  last 
ceased  telling  our  clients  how  much  money  could  be  saved  on  the 
work  by  omitting  the  sub-punching  and  reaming.  If  any  one  has 
any  doubts  about  the  necessity  for  this  treatment  of  the  metal,  he 
can  set  them  finally  at  rest  in  one  of  two  ways — by  reading  my 
resume  of  the  discussions  on  my  paper  upon  "Elevated  Railroads," 
published  in  the  "Transactions  of  the  American  Society  of  Civil 
Engineers,"  or  by  inspecting  in  the  shops  before  the  reaming  is 
done  a  lot  of  assembled  metal,  running  his  finger  into  a  number  of 
the  holes,  and  noting  the  great  irregularities  that  the  rivets  will 
have  to  fill,  if  the  holes  be  punched  full  size. 

SHIPPING. 

"All  parts  shall  be  loaded  carefully  so  as  to  avoid  injury  in    Transportation 
transportation  and  shall  be  at  the  Contractor's  risk  until   erected 
and  accepted. 

In  shipping  long  plate-girders,  great  care  is  to  be  taken  to 
distribute  the  weight  properly  over  the  two  cars  that  support  them 
and  to  provide  means  for  permitting  the  cars  to  pass  around  curves 
without  disturbing  the  loading.  In  both  the  handling  and  the  ship- 
ment of  metalwork  every  care  is  to  be  taken  to  avoid  bending  or 
straining  the  pieces  or  damaging  the  paint.  All  pieces  bent  or 
otherwise  injured  will  be  rejected." 

The  preceding  clauses  have  all  related  to  the  superstructure  of 
bridges;  those  immediately  following  will  relate  to  the  substructure. 

POSITION  OF  PIERS,  PEDESTALS,  AND  ABUTMENTS. 

"All  piers,  pedestals,  and  abutments,  when  finished,  must  be  in    Lines  and  Levels 
exact  position  and  to  exact  elevation;   and  all  anchor-bolts  therein 
must   be   located   with  the  greatest   exactness   in    respect   to   both 
horizontal  position  and  elevation. 

The  Contractor  must  provide  all  guide-piles,  anchors,  cables, 
frames,  and  forms  that  may  be  required  to  insure  the  result." 

The  placing  in  exact  position  of  all  piers  is  one  of  the  most 
difficult  feats  that  the  substructure  contractor  has  to  accomplish; 


28 


SPECIFICATIONS    AND    CONTRACTS. 


Foundation   Depths 


Borings 


Unforeseen  Obstruc- 
tions 


Risks 


consequently   it   is   evident   that  this   requirement   is   an   absolute 
necessity. 

DEPTHS  OF  FOUNDATIONS. 

"All  cribs,  footings,  and  caissons  are  to  be  sunk  to  the  depths 
shown  on  the  Engineer's  plans  or  to  such  other  depths  as  the 
Engineer  may  deem  necessary  as  the  work  progresses. 

The  data  furnished  to  bidders  by  the  Engineer  regarding  depths 
of  foundations  or  of  bed  rock  are  to  be  considered  as  merely  approxi- 
mate; and  bidders  must  assume  the  risk  of  having  to  go  a  greater 
or  less  depth  without  altering  in  any  way  their  schedule  prices. 
If,  however,  the  Engineer  consider  that  the  Contractor  is  really 
entitled  to  extra  compensation  on  account  of  material  variation 
from  the  data  furnished,  such  extra  compensation  will  be  allowed, 
but  the  amount  thereof  shall  be  determined  solely  by  the  Engineer. 

If,  too,  during  the  progress  of  the  work,  the  Engineer  deem  that 
further  investigations  concerning  the  elevations  of  bed  rock  or 
quality  of  materials  for  foundations  are  necessary,  the  Contractor 
shall  make  at  his  own  expense,  under  the  direction  of  the  Engineer, 
all  the  borings  or  similar  investigations  which  the  latter  may  con- 
sider to  be  requisite.1 

ENCOUNTERING    OBSTACLES. 

Bidders  must  figure  on  taking  their  chances  of  encountering 
logs,  boulders,  and  other  obstacles  under  the  river  bed  at  the  pier 
sites;  and  the  Contractor  must  provide  himself  with  all  the  neces- 
sary tackle  and  apparatus  for  handling  the  same.  There  will  be 
no  extra  price  allowed  because  of  the  difficulty  in  sinking,  or  in 
driving"  through,  or  in  removing  said  obstacles." 

Some  contractors  complain  that  this  clause  is  too  severe,  in  that 
it  places  upon  them  the  entire  responsibility  and  risk  involved  in 
case  of  meeting  with  unexpected  obstacles;  nevertheless,  it  is  both 
fair  and  necessary.  If  the  Contractor  were  paid  extra  on  account 
of  obstacles,  there  would  be  no  end  to  his  claims  for  increased  com- 
pensation, and  the  amounts  of  these  claims  might  be  excessive, 
because  he  would  probably  fail  to  make  at  the  outset  proper  pro- 
vision for  removing  all  obstructions,  while,  if  the  onus  were  on  him, 
he  would  undoubtedly  provide  everything  necessary.2 


'The  obligations  of  the  Contractor  should  be  definite  in  amount  and 
character. 

2  This  depends  upon  who  is  to  bear  the  risks  of  the  undertaking ;  the 
Owner  or  the  Contractor.  Contractors  are  not  generally  in  the  insurance  busi- 
ness, and  their  investigation  is  not  usually  as  extended  as  is  that  by  the 
Owner  and  its  or  his  Engineers.  The  Engineer  is  best  qualified  to  make  a 
contract  of  Indemnity  or  of  insurance. 


SPECIFICATIONS    AND    CONTRACTS.  29 

PILE  FOUNDATIONS. 

"Where  piers  and  abutments  are  to  rest  on  piles,  the  earth  is  to  Piling 
be  excavated  to  the  depth  required,  the  boxing  timber  is  to  be  put  in, 
if  any  be  called  for  on  the  plans  or  by  the  Engineer,  then  the  piles 
are  to  be  driven  to  the  satisfaction  of  the  Engineer,  and  cut  off  at 
the  proper  elevation,  then  the  earth  that  has  risen  between  the  piles 
is  to  be  removed,  and  the  bed  is  to  be  rammed,  if  the  Engineer  so 
direct.  The  length  and  penetration  of  all  piles  are  to  be  determined 
by  the  Engineer.1 

If  it  be  practicable  to  pump  out  the  water  in  the  pit  and  keep  Pumping 
the  latter  clear  of  same  without  injury  to  the  unset  concrete,  this 
is  to  be  done  while  the  concrete  is  being  tamped  around  the  piles 
to  within  two  (2)  feet  of  the  tops  thereof,  and  until  the  concrete 
has  set;  otherwise,  concrete  of  the  same  kind  as  hereinafter  specified 
for  the  tops  of  concrete  piers  is  to  be  placed  between  and  around  the 
piles  by  means  of  a  tremie,  being  carried  up  to  the  height  just 
specified;  and  after  the  same  has  set  the  water  is  to  be  pumped 
out,  and  the  remainder  of  the  footing  is  to  be  built  of  ordinary 
concrete  laid  in  the  dry. 

CONCRETE  PIERS  AND  ABUTMENTS. 

All  piers  and  abutments  are  to  be  built  of  broken  stone  concrete;   Concrete 
but  the  Contractor  will  be  permitted  to  mix  therewith  a  portion  of 
clean  gravel  in  order  to  reduce  the  percentage  of  voids  in  the  broken 
stone. 

The  proportions  for  concrete  without  gravel  for  all  interiors 
and  footings  of  piers  and  abutments  shall  be  as  follows: 

1  part  of  Portland  cement. 

3  parts  of  clean,  coarse,  sharp  sand. 

5  parts  of  broken  stone  to  pass  a  two  and  one-half  (2%)  inch 
iron  ring. 

Where  gravel  is  mixed  with  the  stone,  the  proportions  for  the 
said  concrete  are  to  be  as  follows: 

3  parts  of  sand  as  above. 

5  parts  of  mixed  broken  stone  and  gravel,  with  enough  cement 
to  more  than  fill  all  voids  in  the  mixture  by  ten  (10)  per  cent.,  and  in 
no  case  less  than  one  barrel  (380  Ibs.  net)  of  cement  per  cubic  yard 
of  concrete.  The  determination  of  the  volume  of  voids  shall  be  left 
to  the  Engineer. 


Amount  and  character  of  work  should  be  specified  if  possible. 


30 


SPECIFICATIONS    AND    CONTRACTS. 


Forms 


Tamping 


Clean  Surfaces 


Cement 


For  exterior  concrete  work  and  for  all  concrete  to  be  deposited, 
before  setting,  in  water,  the  proportions  are  to  be  as  follows: 

1  part  of  Portland  cement. 

2  parts  of  sand. 

3  parts  of  fine  broken  stone,  to  pass  through  a  three-quarter  (%) 
inch  iron  ring. 

The  exterior  six  (6)  inches  of  all  faces  of  piers  and  abutments 
that  are  exposed  to  the  atmosphere  or  to  water,  are  to  be  built  of 
the  rich  small-stone  concrete  just  described;  and  this  is  to  be  mixed 
and  placed  simultaneously  with  the  other  concrete,  so  that  there 
shall  be  no  division  whatever,  but  a  perfect  bond  between  the  two- 
classes  of  concrete. 

Suitable  forms  of  timber  properly  lined  with  oiled  sheet  iron, 
must  be  provided  to  give  the  constructions  the  exact  dimensions  and 
the  finish  shown  on  the  drawings.  Care  must  be  taken  to  make  all 
forms  strong  enough  to  resist  the  ramming  of  the  concrete  without 
bulging  out  or  in  any  way  changing  their  position. 

No  forms  are  to  be  removed  until  after  the  concrete  deposited 
therein  has  stood  thirty-six  (36)  hours,  or  as  much  longer  as  the 
Engineer  may  deem  necessary. 

The  exterior  concrete  is  to  be  tamped  solidly  against  the  sheet- 
iron  forms,  so  that  there  will  be  no  voids  on  the  exterior  surface, 
which  is  to  be  left  permanently  as  it  comes  from  the  moulds,  unless 
the  Engineer  deem  that  the  surface  is  too  rough,  in  which  case  the 
Contractor  must  put  on  a  smooth,  two-to-one  mortar  finish  to  the 
satisfaction  and  acceptance  of  the  Engineer. 

All  interior  and  footing  concrete  is  to  be  deposited  in  layers  not 
exceeding  nine  (9)  inches  in  thickness,  and  each  layer  is  to  be 
thoroughly  rammed. 

DRY  SURFACES  IN  CONCRETE. 

Should,  during  construction,  any  surfaces  of  the  concrete  be 
allowed  to  harden  or  dry  before  other  concrete  is  placed  thereon, 
they  shall  be  swept  perfectly  clean  with  brooms,  then  wetted 
thoroughly  with  clean  water,  so  as  to  make  a  perfect  contact  between 
the  old  and  the  new  work,  and  thus  insure  that  the  concrete  shall 
be  truly  monolithic.  The  forming  of  such  dry  surfaces  shall,  how- 
ever, always  be  prevented,  if  practicable. 

CEMENT. 

All  cement  used  on  the  work  must  be  Portland  cement  of  the 
very  best  quality  obtainable,  equal  in  every  respect  to  the  best 


SPECIFICATIONS    AND    CONTRACTS.  31 

brands  of  American  and  European  manufacture,  and  delivered  at 
site  in  strong,  close  barrels,  well  lined  with  paper  so  as  to  be  reason- 
ably secure  from  air  and  moisture,  unless  the  Engineer  give  the 
Contractor  written  permission  to  deliver  it  in  bags. 

Each  barrel  shall  ba  labeled  with  the  name  of  the  brand,  place 
made,  and  name  of  manufacturer. 

The  cement  shall  be  ground  so  fine  that  at  least  ninety-seven   Fineness 
(97)  per  cent,  in  weight  will  pass  a  standard  sieve  of  five  thousand 
(5,000)  meshes  to  the  square  inch,  and  so  that  at  least  ninety  (90) 
per  cent,  will  pass  a  standard  sieve  of  ten  thousand  (10,000)  meshes 
per  square  inch. 

When  moulded  neat  into  briquettes  and  exposed  three  (3)  hours,  cement  Tests 
or  until  set,  in  air  and  the  remainder  of  twenty-four  (24)  hours  in 
water,  it  shall  develop  a  tensile  strength  of  from  one  hundred  (100) 
to  two  hundred  and  fifty  (250)  pounds  per  square  inch.  When 
moulded  neat  into  briquettes,  after  exposure  of  one  (1)  day  in  air 
and  six  (6)  days  in  water,  it  shall  develop  a  tensile  strength  of  from 
two  hundred  and  fifty  (250)  to  five  hundred  (500)  pounds  per  square 
inch;  and  after  exposure  of  one  (1)  day  in  air  and  twenty-seven  (27) 
days  in  water,  it  shall  develop  a  tensile  strength  of  from  four 
hundred  (400)  to  six  hundred  (600)  pounds  per  square  inch.  It 
shall  be  an  eminently  slow  setting  cement,  must  develop  its  strength 
gradually,  and  must  show  no  drop  therein.  When  moulded  neat 
into  pats  with  thin  edges  and  left  to  set  in  either  air  or  water, 
whether  on  glass  or  not,  the  said  edges  must  show  no  signs  of 
checking.  The  cement  shall  withstand  properly  the  standard  twenty- 
four  (24)  hour  boiling  test  for  Portland  cement. 

The  cement,  when  mixed  neat  with  twenty-two  (22)  per  cent,  of 
water  to  form  a  stiff  paste,  shall,  after  thirty  (30)  minutes,  be 
indented  perceptibly  by  the  end  of  a  wire  one-twelfth  (1-12)  inch 
in  diameter,  loaded  to  weigh  one-quarter  (%)  pound. 

The  hard  set,  determined  similarly  with  a  wire  one  twenty- 
fourth  (1-24)  inch  in  diameter  and  loaded  so  as  to  weigh  one 
pound,  shall  not  occur  in  less  than  three  (3)  hours. 

Briquettes  mixed  in  the  proportion,  by  weight,  of  one  part  of   Briquettes 
cement  to  three  (3)   parts  of  sand,  and  kept  one  day  in  air  and  the 
remaining  time   in  water,   shall   show   a  tensile  strength   of   from 
one  hundred  (100)  to  one  hundred  and  fifty  (150)  pounds  per  square 
inch  after  twenty-eight  (28)  days. 

Briquettes  left  in  moulds  and  placed  in  water  immediately  after 
mixing  must  harden  to  the  satisfaction  of  the  Engineer,  so  as  to 


32 


SPECIFICATIONS    AND    CONTRACTS. 


prove  the  fitness  of  the  cement  for  setting  under  water.  This  test 
may  be  made  a  comparative  one  by  pitting  the  cement  tested  against 
brands  of  established  reputation.  Any  cement  not  hardening  under 
water  to  the  satisfaction  of  the  Engineer  will  be  rejected.  Cement 
must  work  well  under  the  trowel;  otherwise  it  will  not  be  accepted. 

In  any  case,  the  cement  adopted  must  first  be  approved  by  the 
Engineer. 

Cement  Storage  The  Contractor  shall  provide  a  suitable  building  for  storing  the 

cement,  in  which  the  same  must  be  placed  before  being  tested.  The 
Engineer  shall  be  notified  of  the  receipt  of  cement  for  testing  at  least 
two  (2)  weeks  before  it  is  required  for  use,  and  the  Inspector  may 
take  a  sample  from  each  package  for  the  said  testing. 

Any  cement  that  has  caked  so  as,  in  the  opinion  of  the  Engineer, 
to  be  injured  shall  be  rejected,  and  shall  be  removed  immediately 
by  the  Contractor  from  the  neighborhood  of  the  site,  in  order  to 
avoid  all  possibility  of  its  being  used  on  the  work. 

BACK-FILLING. 

Back-filling  As  soon  as  the  masonry  or  concrete  work  thereon  is  completed, 

the  space  around  each  shore  pier  and  abutment  shall  be  filled  with 
earth,  preferably  clay,  thoroughly  dampened,  and  well  rammed  in 
layers  not  exceeding  six  (6)  inches  in  thickness.  There  will  be  no 
direct  payment  for  this  back-filling,  as  the  cost  is  to  be  covered  by 
the  price  for  concrete. 

LIQUIDATED  DAMAGES. 

Liquidated  Damages  pOr  each  day  of  delay  beyond  the  date  set  in  the  contract  for 

completing  the  Big  Brazos  River  and  Brushy  Creek  No.  1  bridges,  all 
in  accordance  with  the  plans,  specifications,  and  directions  of  the 
Engineer,  the  Company  shall  withhold  permanently  from  the 
Contractor's  total  compensation  the  sum  of  one  hundred  dollars 
($100.00). 

For  each  day  of  delay  beyond  the  date  set  in  the  contract  for 
completing  the  remaining  eight  (8)  bridges,  all  in  accordance  with 
the  plans,  specifications,  and  directions  of  the  Engineer,  the  Com- 
pany shall  withhold  permanently  from  the  Contractor's  total  com- 
pensation the  sum  of  one  hundred  dollars  ($100.00). 

The  amounts  thus  withheld  shall  not  be  considered  as  a  penalty, 
but  as  liquidated  damages  fixed  and  agreed  to  by  the  contracting 
parties." 

Penalties  Let  me  call  your  attention  to  the  term  "Liquidated  Damages," 

which  is  now  employed  instead  of  the  older  term  "Penalty."     If  the 


SPECIFICATIONS    AND    CONTRACTS.  33 

latter  were  used  it  would  be  illegal,  as  the  courts  hold  that  no 
individual  or  corporation  has  the  right  to  enforce  a  penalty,  such 
enforcement  being  within  the  jurisdiction  of  the  law  only,  but 
liquidated  damages  fixed  beforehand  can  be  collected. 

TENDERS. 

"Each  bidder  shall  tender  as  follows:  Proposals 

1st.  For  removal  of  old  spans,  marking  all  the  pieces  of  same, 

and  piling  these  as  per  instructions  of  the  Engineer,  

dollars  per  lineal  foot  of  span  removed. 

2d.  For  removal  of  old  masonry  and  distributing  same, 
dollars  per  cubic  yard. 

3d.  For  concrete  in  shafts  of  new  piers  and  rebuilt  portions  of 
Did  piers, dollars  per  cubic  yard. 

4th.  For  mass  in  place  of  pneumatic  pier,  including  excava- 
tion,    dollars  per  cubic  yard. 

5th.  For  mass  in  place  of  foundations  for  all  piers  and  abut- 
ments, including  those  portions  of  piles  imbedded  in  the  concrete, 
and  including  the  excavation,  dollars  per  cubic  yard. 

6th.  For  those  portions  of  piles  in  place  below  the  concrete  of 
the  foundations, cents  per  lineal  foot  of  pile. 

7th.  For  all  structural  metal  in  superstructure  of  pin-connected 
span,  erected  and  painted,  cents  per  pound. 

8th.  For  all  structural  metal  in  all  other  spans,  erected  and 
painted,  cents  per  pound. 

9th.  For  floor  timber  in  place,  excluding  dressing  and  all  other 
wasted  timber, dollars  per  M.  feet,  B.  M. 

10th.  For  laying  rails,  cents  per  lineal  foot  of 

track. 

llth.  For  falsework  under  the  existing  spans  that  are  to  be  left 

in  the  reconstructed  bridges,  dollars  per  lineal  foot 

of  span. 

For  all  other  items  not  covered  in  this  list  the  Contractor  is  to 
be  paid  the  actual  cost  to  him  thereof  plus  ten  (10)  per  cent,  for 
his  profit.  He  must,  however,  in  such  cases  furnish  vouchers  satis- 
factory to  the  Engineer  for  all  materials  and  labor  involved  in  such 
extra  work  or  construction. 

Tenders  are  to  be  sent  in  sealed  envelopes  to  the  undersigned   Tenders 
Consulting  Engineers,  New  Nelson  Building,  Kansas  City,  Mo.    They 
will  be  received  up  to  noon  of  Thursday,  July  17,  1902. 

The  Company  reserves  the  right  to  reject  any  or  all  bids." 


34 


SPECIFICATIONS    AND    CONTRACTS. 


Unit  Prices 


Example,  Lighthouse 


General  Location 


Investigation 


Description 


It  will  be  noticed  that  all  items  of  work  are  to  be  paid  for  at 
schedule  rates,  and  that  lump-sum  payments  are  avoided.  This  is 
by  far  the  better  and  more  equitable  method  of  compensation; 
because,  if  the  final  quantities  vary  from  those  bid  upon,  no  harm 
will  be  involved,  the  Contractor  being  paid  only  for  what  he  actually 
does.  If  the  lump-sum  basis  of  payment  be  employed,  the  Contractor 
will  be  constantly  tempted  to  cut  down  the  quantities  of  materials 
furnished,  but  when  these  are  paid  for  by  schedule  prices  no  such 
temptation  can  exist.1 

The  following  are  a  few  specific  clauses  from  our  "Specifications 
for  Lighthouses  at  Jutias  Cay  and  Punta  Gobernadora,  on  Colorados 
Reef,  Island  of  Cuba."  I  have  chosen  only  such  items  as  are  charac- 
teristic of  lighthouse  construction. 

GENERAL  DESCRIPTION. 

LIGHTHOUSE  AT   JUTIAS   CAY. 

"This  Lighthouse  will  be  located  on  the  Northeast  extremity  of 
Jutias  Cay,  at  a  distance  of  about  eighty-seven  (87)  meters  from  the 
water's  edge.  The  location  is  well  protected  from  the  action  of  the 
waves  by  a  reef  in  front  and  by  the  growth  of  mangroves.  The 
height  of  the  ground  at  the  site  is  about  nine-tenths  (0.9)  of  a  meter 
above  the  sea-level. 

The  soundings  made  at  the  site  show  that  the  ground  is  com- 
posed of  fine  sand  for  a  depth  of  from  four  (4)  to  five  (5)  meters, 
then  of  sand,  shells,  and  coral  rock  for  a  depth  of  about  eight-tenths 
(0.8)  of  a  meter,  and  this  is  underlaid  with  sand  and  shells,  in  which 
are  imbedded  pieces  of  coral  rock  that  become  more  abundant  as 
the  depth  increases.  It  is  intended  that  the  screw-piles  shall  rest 
on  this  layer.  These  piles  are  of  steel  shafting  fitted  with  cast-iron 
screw  points  as  shown  on  the  drawings. 

The  light  for  this  structure  will  be  a  fixed  one.  The  tower  will 
be  constructed  of  eight  (8)  steel  columns  arranged  in  the  form  of  an 
octagonal  pyramid,  the  long  diameter  of  which  will  be  fifty-six  (56) 
feet  at  the  base  and  fifteen  (15)  feet  at  the  top.  These  columns  are 
to  be  thoroughly  braced  in  all  directions  with  steel  struts  and 
diagonal  rods  as  shown  on  the  drawings. 

There  will  be  a  house  located  at  the  base  of  the  tower,  and  a 
watch-room  located  in  the  top  of  same.  There  will  also  be  a  stairway 


1  Limitations  and  restrictions  imposed  by  municipal  charters,  legislatures, 
and  constitutions  must  be  considered,  which  frequently  require  that  the  total 
expenditure  authorized  by  the  contract  shall  be  determined  and  shall  not 
exceed  a  fixed  sum  or  the  appropriation. 


SPECIFICATIONS    AND    CONTRACTS.  35 

extending  from  the  base  to  the  watch-room  floor  enclosed  by  a  mantel. 
These  enclosures  are  to  be  constructed  of  steel  plates,  and  the  interior 
walls  are  to  be  plastered  on  expanded  metal  lath. 

LIGHTHOUSE    AT    PUNTA    GOBERNADOEA. 

This  structure  will  be  placed  on  the  mainland  at  a  point  known  Substructure 
as  Punta  Gobernadora,  about  six  (6)  miles  west  of  Bahia  Honda. 
The  distance  from  this  tower  to  the  edge  of  the  water  will  be  about 
one  hundred  and  fifty  (150)  meters.  The  site  is  protected  from  the 
action  of  the  waves  by  reefs  on  the  outside.  The  formation  here 
is  an  extensive  bed  of  limestone-coral  rock,  and  the  surface  is 
practically  level. 

The  light  for  this  structure  will  be  movable. 
In  all   other  respects  the  superstructure  will  be  the  same  as 
described  previously  for  the  lighthouse  at  Jutias  Cay. 

FOUNDATIONS 

FOB  LIGHTHOUSE  AT  JUTIAS  CAY. 

The  foundation  for  this  structure  will  consist  of  nine  (9)  screw  Foundation 
piles,  as  shown  on  Sheet  No.  2,  eight  (8)  of  which  are  placed  in  the 
form  of  an  octagon  around  the  axis  of  the  ninth  (9th)  or  central 
pile.  The  long  diameter  of  the  octagonal  base  is  to  be  fifty-six  (56) 
feet,  and  each  of  the  sides  twenty-one  (21)  feet  and  five  and  one- 
eighth  (5%)  inches. 

These  piles  are  to  be  formed  of  solid  steel  shafts  eight (8)  inches 
in  diameter,  at  the  lower  end  of  each  of  which  is  to  be  fitted  a  cast- 
iron  screw,  the  blades  thereof  to  be  four  (4)  feet  in  diameter.  The 
lower  end  of  the  screw  is  to  finish  in  a  point. 

The  exact  depth  to  which  these  piles  must  go  has  not  been  Pile  Driving 
determined,  but  it  will  be  from  eighteen  (18)  feet  to  twenty-five  (25) 
feet  below  the  surface  of  the  ground.  The  Contractor  must  provide 
twenty-five  (25)  feet  of  shaft  and  a  pile  cutter  and  screw  cutter,  so 
as  to  cut  off  the  piles  and  thread  them  at  the  proper  height  after 
screwing  them  down  as  far  as  they  will  go. 

After  the  piles  are  in  place  and  the  tops  are  cut  to  the  proper 
elevation,  concrete  pedestals,  as  shown  on  Sheet  No.  2,  are  to  be 
placed  around  them;  and  on  these  pedestals,  screwed  to  the  tops  of 
the  piles,  will  rest  the  shoes  for  the  steel  columns  of  the  tower. 

The  elevations  and  dimensions  for  these  foundations  are  given 
on  Sheet  No.  2. 


36 


SPECIFICATIONS   AND    CONTRACTS. 


Cylinder    Shafts 


Stairways 


Steps 


STEEL  STAIR  MANTEL. 

The  spiral  stairs  will  be  enclosed  in  a  steel  cylinder,  the  axis  of 
which  is  coincident  with  the  axis  of  the  tower.  The  diameter  of  this 
steel  cylinder  will  be  seven  (7)  feet.  It  is  to  be  formed  of  steel 
plates  one-quarter  (%)  of  an  inch  in  thickness,  the  larger  dimen- 
sions of  which  are  to  be  arranged  vertically  with  the  edges  abutting 
and  the  joints  spliced  with  four  (4)  inch  by  one-quarter  (%)  inch 
plates  placed  on  the  inside. 

The  lower  end  of  this  cylinder  is  to  rest  on  the  center  pile  and 
its  concrete  pedestal.  All  rivets  in  the  stairway  cylinder  are  to  be 
one-half  (%)  inch  in  diameter.  In  the  lower  section  of  the  cylinder 
a  door  is  to  be  placed,  and  at  a  height  of  three  (3)  feet  above  each 
stairway  landing  there  is  to  be  fitted  a  cast  iron  window  frame.  All 
windows  are  to  be  arranged  as  nearly  as  practicable  at  points  ninety 
(90)  degrees  apart  around  the  cylinder,  and  they  must  come  about 
midway  between  the  two  columns  on  that  side  of  the  pyramid. 

The  inside  of  the  stairway  cylinder  is  to  be  provided  with  angles 
for  attaching  three-quarter  (%)  inch  channels  and  expanded  metal 
lath,  as  the  entire  inside  of  the  cylinder  is  to  be  finished  with  plaster. 

SPIRAL  STAIRS. 

The  spiral  stairs  will  consist  of  one  hundred  and  forty-eight 
(148)  risers,  including  eight  (8)  quarter  (^4)  circle  landings,  which 
divide  the  ascent  into  nine  (9)  flights,  eight  (8)  of  which  are  twelve 
(12)  feet  nine  (9)  inches  each  in  height,  and  containing  seventeen 
(17)  risers  of  nine  (9)  inches  each,  and  one  flight  of  nine  (9)  feet, 
containing  twelve  (12)  risers  of  nine  (9)  inches  each. 

The  steps  are  to  be  of  cast  iron,  the  extreme  radius  of  each 
being  three  (3)  feet.  Each  step  comprises  a  tread  of  twenty-two  and 
one-half  (22%)  degrees  of  the  circle,  between  the  centers  of  the 
one-half  (%)  inch  bolts  which  will  secure  the  steps  to  each  other. 

The  inner  end  of  each  step  is  provided  with  a  hub  six  and  five- 
eighths  (6%)  inches  outside  diameter,  which  must  be  faced  on  its 
upper  and  lower  ends  to  exactly  nine  (9)  inches  deep,  and  must  be 
bored  out  to  five  and  one-half  (5%)  inches  in  diameter  so  as  to  fit 
snugly  over  the  newel  pipe. 

The  treads  are  one-half  (%)  inch  thick  and  are  perforated  with 
lozenge-shaped  openings  one  (1)  inch  wide.  The  gratings  are  one- 
half  ( y2 )  inch  wide,  and  at  their  inner  sections  the  steps  are  studded 
with  lozenge-shaped  projections  to  prevent  slipping;  and  for  the  same 
reason  a  half-round  bead  one-eighth  (%)  inch  high  is  raised  along 
the  front  edge  of  each  step. 


SPECIFICATIONS    AND    CONTRACTS.  37 

The  bolt  sleeves  at  the  front  of  each  step  are  to  be  nine  (9) 
inches  high  and  deeply  counter-sunk  on  the  upper  side  for  the  heads 
of  the  stair-bolts. 

All  surfaces  of  contact  between  the  sleeves  of  the  adjoining  steps 
must  be  planed. 

NEWEL  POST. 

The  newel  pest  will  be  made  of  double-strength,  wrought-iron  Newel  Posts 
water-pipe,  five  (5)  inches  inside  diameter,  and  turned  on  the  out- 
side to  a  diameter  of  five  and  one-half  (S1^)  inches.  At  each  joint 
the  ends  must  be  faced  so  as  to  give  perfect  contact,  and  the  joints 
must  be  so  arranged  as  to  bring  them  midway  of  the  length  of  the 
hubs  of  the  steps.  On  the  inside  the  pipe  must  be  spliced  with  a 
threaded  coupling. 

The  newel  pipe  should  be  made  in  seven  (7)  lengths  of  about 
sixteen  (16)  feet  each,  as  nearly  as  may  be,  to  bring  the  joints  as 
stated  above. 

The  base  of  the  newel  pipe  will  be  provided  with  a  steel  flange, 
which  will  be  tap-bolted  to  the  cast-iron  base  at  center. 

Throughout  the  whole  height  of  tower  the  newel  must  stand 
perfectly  plumb. 

In  the  case  of  the  Punta  Gobernadora  Lighthouse  the  cord  of 
the  revolving  apparatus  will  be  run  through  the  center  of  the  newel 
pipe,  and  pulleys  near  the  upper  and  lower  ends  of  the  pipe  must  be 
provided. 

The  upper  end  of  the  top  section  of  the  newel  pipe  will  extend 
a  short  distance  into  the  hub  of  the  watch-room  floor. 

DWELLING  HOUSE. 

The  entire  space  included  between  the  columns  at  the  base  of  Dwelling  Houses 
the  tower  is  to  be  enclosed  with  steel  walls  so  as  to  form  a  dwelling. 
This  space  is  to  be  divided  into  nine  (9)  outside  rooms  and  an  inner 
court.  The  walls  and  roof  of  this  building  are  to  be  of  one-quarter 
( % )  inch  steel  plates  of  the  style  and  dimensions  indicated  on  Sheet 
No.  5.  All  rivets  are  to  be  one-half  (%)  inch  in  diameter  unless 
otherwise  noted  on  the  drawings. 

The  floor  will  be  of  concrete,  supported  on  No.  16  expanded  Floojrs 
metal  and  steel  I-beams.  There  will  be  three  and  one-half  (3^) 
inches  of  broken  stone  or  cinder  concrete,  mixed  in  the  proportion 
of  one  (1)  part  of  Portland  cement,  three  (3)  parts  of  clean,  sharp 
sand,  and  five  (5)  parts  of  broken  stone  or  cinders  to  pass  a  one  and 
one-half  (1%)  inch  iron  ring.  On  this  concrete  base  there  is  to  be 


38 


SPECIFICATIONS    AND    CONTRACTS. 


Partitions 


Roof 


Carpentry 


laid  one  (1)  inch  of  cement  finish,  mixed  in  the  proportion  of  one 
(1)  part  of  Portland  cement  and  one  (1)  part  of  clean,  sharp  sand. 
The  entire  surface  is  to  be  floated  to  a  smooth,  even  finish. 

All  partitions  are  to  be  constructed  of  three-quarter  (%)  inch 
channels,  set  vertically  and  spaced  eighteen  (18)  inches  centers,  on 
which  is  to  be  wired  No.  20  expanded  metal  lath;  and  the  two  sur- 
faces are  then  to  be  plastered  with  two  coats  each  of  hard  wall- 
plaster.  The  interior  of  outside  walls  and  the  ceilings  are  to  be 
finished  in  the  same  manner  as  the  partitions.  The  rooms  are  to 
be  ventilated  by  registers  in  the  ceiling,  and  openings  are  to  be  left 
in  the  walls  of  the  stairway  mantel  to  conduct  the  air  from  the  space 
between  the  ceiling  and  the  roof  and  from  the  open  court  to  the  top 
of  the  mantel,  all  as  shown  on  the  drawings.  Doors  and  windows 
are  to  be  provided  in  the  house,  as  shown  in  the  plans. 

Around  the  edge  of  the  roof  an  eight  (8)  inch  gutter  of  cast 
iron  is  to  be  placed.  This  gutter  is  to  be  three-eighths  (%)  of  an 
inch  thick,  and  is  to  be  cast  in  lengths  of  about  ten  (10)  feet.  It 
will  be  supported  at  the  corners  and  at  the  center  of  each  side  with 
brackets  constructed  of  two  (2)  inch  by  three-eighth  (%)  inch  flat 
steel  bars.  Bell  joints  are  to  be  provided,  and  they  are  to  be 
thoroughly  caulked  with  lead.  The  gutter  is  to  have  a  slope  of  one 
(1)  inch  in  twenty  (20)  feet.  Two  (2)  conductors  of  six  (6)  inch 
wrought-iron  pipe  are  to  be  provided  with  the  necessary  elbows  and 
other  fittings  to  carry  the  water  from  the  gutter  to  the  cast-iron  tank 
in  the  yard.  The  pipe  is  to  have  a  flange  resting  on  the  cover  of 
tank  and  is  to  extend  six  (6)  inches  into  same. 

Concrete  steps  are  to  be  provided  at  the  two  entrances  of  the 
building. 

Holes  are  to  be  provided  in  the  roof  for  the  stove-pipe  ventilators 
mentioned  under  "Hardware." 

For  details  of  dwelling  see  Sheet  No.  5. 

WOODWORK. 

The  woodwork  for  these  buildings  will  consist  of  the  windows 
and  doors,  their  frames  and  casings,  and  the  closets  and  cupboards. 
All  woodwork  will  be  of  clear  white  pine,  thoroughly  seasoned,  free 
from  all  shakes,  sap,  and  other  defects.  All  workmanship  is  to  be 
first-class.  All  doors  and  sash  are  to  be  one  and  three-fourths  (1%) 
inches  thick,  and  are  to  have  rain  channels  plowed  as  shown  on 
drawings.  Casement  windows  and  double  doors  are  to  have  moulded 
oak  joint-strips  inside  and  out. 


SPECIFICATIONS    AND    CONTRACTS.  39 

All  outside  doors  leading  to  the  central  court  of  dwelling,  doors 
in  stairway  and  watch-room,  and  the  two  doors  from  office  to  bed- 
rooms, are  to  have  upper  panels  of  glass,  as  called  for  on  drawings. 
All  doors  and  sash  are  to  be  neatly  moulded  and  well  pinned  and 
glued. 

All  junctions  of  plaster  and  woodwork  will  be  covered  by  one 
and  one-quarter  by  one  and  three  quarter  (li/4  xl%)  inch  moulding. 
This  moulding  will  form  the  casing  of  all  doors  and  windows.  A 
closet  is  to  be  provided  in  one  corner  of  each  bedroom,  two  (2)  of 
them  in  the  office,  and  a  cupboard  in  each  kitchen. 

The  cupboards  are  to  be  eight  (8)  feet  six  (6)  inches  in  height,    Cabinets 
and    are   to   be    divided    into    two    (2)    compartments.     The    lower 
compartments  are  to  be  three  (3)  feet  six   (6)  inches  high,  and  are 
to  have  only  a  bottom  shelf,  each  upper  compartment  having  four 
shelves  besides  the  division  shelves. 

Drain  boards  two  (2)  feet  long  are  to  be  provided  for  each  sink. 

The  lower  compartments  of  closets  are  to  be  (2)  feet  six  (6) 
inches  high,  and  they  are  each  to  have  three  (3)  shelves;  the  upper 
compartments  are  to  have  only  one  shelf  at  top.  For  details  see 
Sheet  No.  5. 

All  woodwork  is  to  be  surfaced,  sand-papered,  and  primed  on   Woodwork 
both  sides  before  leaving  the  shop.     It  must  be  kept  dry  and  must  be 
securely  boxed  for  shipment. 

All  woodwork  is  to  be  treated  by  some  process,  to  be  approved 
by  the  Engineer,  so  as  to  render  it  non-combustible." 

The  following  are  some  characteristic  specific  clauses  from  our   Example,  Steel  Pier 
"Specifications  for  a  Steel  Pier  to  be  built  in  the  Harbor  of  Vera 
Cruz,  Mexico,  for  the  Vera  Cruz  and  Pacific  Railway  Company": 

GENERAL  DESCRIPTION. 

"The  structure  will  consist  of  a  platform  of  creosoted  timber,  four  Description 
hundred  and  ninety-two  (492)  feet  long  by  seventy-four  (74)  feet 
wide,  resting  on  steel  joists,  spaced  about  four  and  one-half  (4%) 
feet  centers,  which  in  turn  rest  on  double  I-beam  girders  that  are 
supported  at  intervals  of  fourteen  (14)  feet  six  (6)  inches  by  screw 
piles. 

These  piles  are  thoroughly  braced  so  as  to  form  independent 
towers  with  four  (4)  piles  to  each  tower,  the  bracing  extending  from 
the  top  down  to,  and  in  some  cases  even  into,  the  sand. 

At  the  middle  of  the  platform  and  extending  over  its  entire 
length  is  a  double-track  railway,  the  rails  for  same  resting  on  and 


40  SPECIFICATIONS    AND    CONTRACTS. 

spiking  to  the  six  (6)  inch  timber  floor,  of  which  the  platform  is 
composed.  Between  the  rails  is  laid  four  (4)  inch  planking,  and 
beyond  the  outer  rails  are  beveled  planks,  all  to  facilitate  the  passage 
of  trucks  and  vehicles  over  the  rails. 

Around  the  entire  periphery  of  the  two  sides  and  the  outer  end 
of  the  pier  runs  a  twelve  (12)  inch  by  twelve  (12)  inch  timber 
fender,  bolted  firmly  to  the  metal  work;  and  on  each  side  of  the  pier 
there  are  located  at  intervals  five  (5)  cast-iron  mooring  posts. 

Each  railway  track  is  supported  by  four  (4)  runs  of  steel 
I-beams,  braced  together  in  pairs  by  diaphragms  of  steel  channels. 

The  deck  is  swayed  in  a  horizontal  plane  by  adjustable  diagonal 
rods  that  attach  by  clevises  to  the  cast-iron  caps  over  the  piles. 

The  tower  bracing  consists  of  horizontal  struts,  each  composed 
of  two  (2)  six  (6)  inch  by  four  (4)  inch  T's  and  diagonal  rods 
adjusted  by  turnbuckles.  The  bracing  is  connected  to  the  piles  by 
forged  steel  clamps. 

Piles  The  piles,  which  are  of  seven  (7)  inch  solid  cylinders,  are  to  be 

preferably  in  one  length;  but  splices  will  be  permitted,  and,  in  fact, 
are  provided  for  on  the  drawings. 

The  screws  are  to  be  of  cast  iron,  four  (4)  feet  nine  (9)  inches 
in  diameter,  and  are  to  have  sockets  for  receiving  the  ends  of  the 
steel  piles.  The  shoes  are  held  in  place  by  means  of  steel  pins 
passing  through  both  the  pile  and  the  shoe. 

The  cross  girders  are  to  be  bolted  to  the  pile  caps;  the  joists 
are  to  be  riveted  to  the  cross  girders;  the  flooring  is  to  be  attached 
to  the  joists  by  lag  screws  and  beveled  washers;  and  the  planking 
at  railroad  tracks  is  to  be  spiked  to  the  flooring  by  eight  (8)  inch  by 
one-half  (!/:>)  inch  square  spikes,  two  (2)  spikes  being  used  for 
each  running  foot  of  plank. 

MODUS  OPERANDI  OF  CONSTRUCTION. 

Conduct  of  Work  All  piles  are  to  be  placed  in  as  nearly  exact  position  as  it  is 

practicable  to  get  them.  As  no  adjustment  has  been  provided  for  in 
the  bracing  struts,  the  four  (4)  piles  forming  a  tower  must  be  sunk 
within  an  eighth  (%)  of  an  inch  of  true  position.  In  order  to 
secure  such  an  accurate  location  with  reference  to  each  other,  some 
form  of  portable,  convenient,  and  rigid  template  must  be  used  to  set 
and  hold  the  four  (4)  piles  of  each  tower  to  exact  position  during 
sinking.  The  Contractor,  before  proceeding  with  the  work,  shall 
submit  to  the  Engineer  for  approval  a  complete  description  and 
plans,  explaining  fully  the  method  he  proposes  to  adopt. 


SPECIFICATIONS    AND    CONTRACTS.  41 

The  power  applied  for  screwing  the  piles  in  place  shall  not  be 

great  enough  to  strain  them  in  torsion  beyond  the  elastic  limit  of 

the  material. 

Great  care  must  be  exercised  to  get  the  piles  down  to  exact 

elevation. 

All  bracing  must  be  put  in  under  water  by  divers.    All  clamps 

must  grip  the  piles  so  tightly  that  they  will  develop  the  full  strength 

of    the    diagonal    rods    attaching    to    them,    without     slipping.     All 

diagonal  rods  must  be  tightened  and  adjusted  to  the  satisfaction  of 

the  Engineer. 

After  the  bracing  is  adjusted  all  towers  must  stand  plumb,  and 

the  plan  of  each  tower  must  be  a  perfect  square. 

Before  the  timber  floor  is  put  on,  the  upper  lateral  diagonals 

must  be  carefully  adjusted    so  as  to  bring  the  platform  to  perfect 

alignment- 
All  sand  and  silt  that  would  interfere  with  the  placing  of  the 

bracing,  as  shown  on  the  plans,  must  be  removed;  and  there  will  be 

no  direct  payment  for  this  removal,  as  its  cost  must  be  covered  by 

the  pound-price  bid  for  the  erected  metal. 

BORINGS. 

Very  thorough  borings  have  been  made  by  the  Company's  Borings 
engineers  and  the  results  thereof  are  shown  on  Sheet  No.  1  of  the 
accompanying  plans.  Although  the  said  borings  indicate  that  no 
unusual  difficulty  will  be  encountered  in  sinking  the  piles  because 
of  obstacles  in  the  sand,  it  is  possible  that  such  obstacles  do  exist, 
and  the  Contractor  must  take  the  risk  of  encountering  them,  as  there 
will  be  no  extra  compensation  allowed  therefor. 

PILES. 

All  piles  shall  be  sunk  to  exact  position  by  means  of  adequate  pile  Driving 
machinery,  power,  and  guide  frames,  all  of  which,  before  being  used, 
must  be  approved  by  the  Engineer.     Such  approval,  though,  shall  not 
be  interpreted  as  giving  the  Contractor  any  claim  whatsoever  for    . 
avoidance  of  responsibility  in  respect  to  correctness  of  final  position 
of  piles. 

All  piles  are  to  be  screwed  down  to  the  elevations  shown  on 
Sheet  No.  1;  but  if  there  be  any  slight  inequality  in  elevations  of 
tops  of  piles,  the  same  shall  be  adjusted  by  means  of  thin,  cylindrical 
shimming  plates,  seven  (7)  inches  in  diameter,  to  be  placed  between 
the  heads  of  the  piles  and  the  cast-iron  caps.  Should  any  pile  be 
left  too  high,  its  top  shall  be  sawed  off  to  exact  level;  but,  as  this 


42  SPECIFICATIONS    AND    CONTRACTS. 

would  be  expensive,  the  Contractor  should  endeavor  to  sink  all  piles 
a  trifle  low,  so  as  to  shim  upon  each  a  small  amount.  He  should 
also  provide  an  ample  number  of  shimming  plates  of  various  thick- 
nesses. The  greatest  variation  of  height  of  column  to  be  taken  up 
by  shimming  plates  shall  in  no  case  exceed  one  and  one-half  (ll/2) 
inches. 

No  variation  in  elevation  of  tops, of  pile  castings  exceeding  one- 
sixteenth  (1-16  )of  an  inch  will  be  permitted.  The  spaces  between 
the  pile  heads  and  sockets  of  castings  shall  be  filled  completely  with 
hot,  thick  asphaltum,  by  putting  an  excess  thereof  in  the  casting 
just  as  the  latter  is  about  to  be  placed,  and  the  said  asphaltum  must 
be  held  permanently  in  the  annular  space  by  caulking  tightly  with 
sheet  lead  from  below. 

This  work  must  all  be  done  to  the  satisfaction  and  acceptance  of 
the  Engineer,  and  there  will  be  no  direct  payment  made  for  either 
lead,  asphaltum,  or  labor  involved  in  putting  these  in  place,  as  the 
pound-price  for  the  metal-work  must  cover  the  cost  of  these  materials- 
and  labor. 

PAINTING. 

Tainting  AJJ  metal-work  before  leaving  the  shop  shall  be  thoroughly 

cleansed  from  all  loose  scale,  rust,  and  dirt,  and  shall  then  be  given 
one  coat  of  paint,  which  coat  shall  be  thoroughly  dried  before  the 
metal-work  is  loaded  for  shipment.  It  is  absolutely  essential  that 
the  entire  surface  of  the  metal-work  be  thoroughly  cleansed  by  the 
most  effective  known  methods,  such  as  the  use  of  wire  brushes,  then 
the  painter's  torch,  and  in%certain  cases  the  application  of  a  strong 
caustic  solution,  followed  by  scraping,  washing  with  clean  water, 
and  drying. 

In  riveted  work  all  surfaces  coming  in  contact  shall  be  extra 
well  painted  before  being  riveted  together.  Bottoms  of  bed-plates, 
bearing-plates,  and  any  other  parts  which  are  not  accessible  for 
painting  after  erection  shall  have  three  (3)  coats  of  paint,  one  at 
the  shop,  and  the  other  two  in  the  field  before  erection.  Pins,  bored 
pin-holes,  and  all  other  polished  surfaces  shall  be  coated  with  white 
lead  and  tallow  before  shipment  from  the  shop. 

Oil  should  be  used  as  the  lubricant  for  reaming,  but,  should  soap- 
suds be  employed,  all  parts  of  the  metal  affected  thereby  must  be 
washed  thoroughly  and  dried  before  any  painting  is  done  thereon. 

After  the  structure  is  erected,  the  metal-work  shall  be  thoroughly 
cleansed  from  mud,  grease,  or  any  other  objectionable  material  that 


SPECIFICATIONS    AND    CONTRACTS.  43 

may  be  found  thereon,  then  thoroughly  and   evenly   painted  with 
two  (2)  coats  of  paint. 

The  paint  to  be  used  on  the  metal-work  is  known  as  Leiter's  paints 
Air-Drying  Paint,  sold  by  the  L.  Z.  Leiter  Co.,  81  South  Clark  street, 
Chicago,  111.,  and  costing  there  one  doLar  and  twenty-five  cents 
($1.25)  per  gallon.  The  Engineer  reserves  the  right  to  substitute 
any  other  paint,  which,  in  his  opinion,  is  equally  good  or  better  for 
resisting  the  corrosive  effects  of  salt  water. 

All  three  coats  of  paint  given  to  the  metal-work  are  to  be  of 
distinctly  different  shades  or  colors,  and  the  second  coat  must  be 
allowed  to  dry  thoroughly  before  the  third  coat  is  applied. 

No  thinning  of  paint  with  turpentine,  benzine,  or  other  thinner 
will  be  allowed  without  special  written  permission  from  the 
Engineer. 

No  painting  is  to  be  done  in  wet  weather. 

All  painting  is  to  be  done  in  a  thorough  and  workmanlike 
manner,  to  the  satisfaction  of  the  Engineer,  and  no  paint  whatever 
is  to  be  used  on  the  structure  without  first  being  approved  by  the 
Engineer. 

All  materials  for  painting  shall  be  subject  at  all  times  to  the 
closest  inspection  and  chemical  analysis,  and  the  detection  of  any 
inferior  quality  of  such  material,  in  either  shop  or  field,  shall  involve 
the  rejection  of  all  suspected  material  at  hand  and  the  scraping 
and  repainting  of  those  portions  of  the  work  that,  in  the  opinion  of 
the  Engineer,  were  defectively  painted  on  account  of  such  inferior 
material. 

All  recesses  that  would  retain  water  or  through  which  water 
could  enter  must  be  filled  with  thick  paint  or  some  waterproof 
cement  before  receiving  final  painting.  All  surfaces  so  close 
together  as  to  prevent  the  insertion  of  paint-brushes  must  be  painted 
thoroughly  by  using  a  piece  of  cloth  instead  of  the  brush. 

LOADING  METAL-WORK  ON  VESSEL  AND  PREPARING  SAME 

THEREFOR. 

Pains  must  be  taken  to  mark  clearly  every  piece,  bundle,   or   shipping 
package  with  the  shipping  address  and  destination,  with  the  names 
and  numbers  of  pieces,  and  with  any  other  such  mark  of  identifica- 
tion as  may  be  necessary  to  insure  the  correct  disposition  of  the 
material. 

All  small  parts,  such  as  rivets,  bolts,  nuts,  washers,  pins,  fillers, 


44  SPECIFICATIONS    AND    CONTRACTS. 

small  connection-plates,  etc.,  shall  be  boxed  strongly,  and  the  con- 
tents shall  be  marked  plainly  on  each  box,  in  addition  to  the  shipping 
address  mentioned  above. 

All  lateral  angles  shall  be  bolted  together  in  pairs;  and  as  many 
of  such  pairs  shall  be  bundled  together  with  clamps  or  wires  as  will 
be  convenient  for  handling  without  injury  in  loading  and  unloading. 

All  pieces  with  open  ends,  such  as  truss-members  with  forked 
ends,  or  laterals  with  unsupported  plates  or  angles,  or  any  other 
parts  liable  to  injury  in  handling,  shall  have  the  ends  packed  with 
heavy  blocks  of  timber,  bolted  thoroughly  between  the  projections 
or  to  the  body  of  the  member  in  such  a  manner  as  to  prevent  any 
bending  or  other  injury  in  handling  or  on  shipboard. 

All  nuts  on  any  rods  or  bolts  shipped  loose  shall  be  screwed 
tightly  in  place,  and  the  threads  thereof  shall  be  wound  closely  with 
twine,  so  that  the  nuts  cannot  come  loose  and  be  lost  off  in 
handling. 

The  shipping  invoices  or  lists  are  to  be  made  to  correspond  to 
the  bundles,  boxes,  and  packages,  so  that  each  item  on  the  list  can 
be  identified  readily. 

During  both  the  loading  on  steamer  and  the  unloading  from 
same,  special  care  shall  be  taken  to  avoid  injuring  any  of  the  metal- 
work,  and  the  loading  shall  be  so  done  as  not  to  overstrain  unduly 
any  part  and  so  as  to  prevent  any  shifting  during  the  voyage.  If,  in 
spite  of  all  precautions,  some  of  the  metal-work  be  injured,  the  entire 
expense  to  which  the  Company  is  put  because  of  such  injury  shall  be 
borne  by  the  Contractor. 

All  the  expense  involved  by  these  special  shipping  and  loading 
directions  shall  be  borne  by  the  Contractor,  as  no  extra  payment 
will  be  allowed  therefor." 

I  desire  to  call  your  attention  to  the  importance  of  including 
in  specifications  for  metal-work  that  is  to  be  transported  by  water 
full  instructions  for  loading  the  material  in  such  a  manner  as  to 
reduce  to  a  minimum  the  danger  of  injury  in  transit.  Unless  this 
matter  receive  due  consideration  in  the  specifications,  and  unless 
the  latter  be  strictly  lived  up  to  in  this  particular,  the  metal  is 
liable  to  be  so  damaged  during  transportation  as  to  necessitate  the 
rejection  and  replacement  of  some  important  parts,  thus  involving 
for  the  construction  long  and  often  serious  delays.1 


1  Provide  for  bill  of  lading  and  secure  control   of   materials   as   against 
creditors  and  others,  if  possible. 


SPECIFICATIONS    AND    CONTRACTS.  45 

The  following  characteristic  clauses  are  taken  from  our  "Specifi-    Example,  Pipe  Line 
cations  for  Steel  Pipe  Line  for  the  City  of  Kansas  City,  Mo.": 
GENERAL  DESCRIPTION. 

"The  work  is  to  consist  of  a  buried  pipe  line,  covered  to  a  depth    Description 
of  at  least  three  (3)  feet  above  the  top  thereof. 

The   pipe   shall   be   forty-eight    (48)    inches    internal    diameter    Pipe 
(irrespective  of  the  rivet  heads),  and  shall  be  made  of  soft  steel 
one-half  (%)  inch  thick. 

Bidders,  however,  shall  tender  also  on  a  pipe  of  thirty-six  (36) 
inches  minimum  internal  diameter  (irrespective  of  the  rivet  heads), 
made  of  soft  steel  three-eighths  (%)  of  an  inch  thick. 

All    joints    are    to    be   lap-joints,    the    longitudinal    ones   being    Manufacture 
double-riveted,  and  the  transverse  ones  single-riveted. 

The  length  of  the  over-lap  for  the  longitudinal  joints  shall  be 
five  and  one-half  (5^)  inches,  and  that  for  the  transverse  joints 
three  (3)  inches. 

There  shall  be  but  one  longitudinal  joint  in  any  section  of  pipe. 

All  rivets  are  to  be  of  soft  steel,  three-quarters  (%)  of  an  inch 
in  diameter  and  spaced  two  and  one-half  (2%)  inches  centers,  as 
shown  on  the  accompanying  drawings. 

The  pipe  is  to  be  built  in  sections  telescoping  into  each  other, 
each  section  being  seven  (7)  feet  long,  and  there  being  four  (4) 
sections  riveted  together  in  the  shops,  thus  making  the  total  length 
of  pipe  for  shipment  twenty-seven  (27)  feet  three  (3)  inches  from 
out  to  out,  four  (4)  of  such  forty-eight  (48)  inch  pipes  'making  a 
carload. 

The  distance  from  center  line  of  rivets  to  edge  of  plate  is  to  be 
one  and  one-half  (1^)  inches. 

The  larger  sections  shall  be  of  such  internal  diameter  that  the 
smaller  sections  will  fit  tightly  inside  them  after  the  lap-joints  have 
been  drawn  out  to  thin  edges. 

All  joints  are  to  be  caulked  so  as  to  be  absolutely  water-tight 
under  a  three  hundred  (300)  foot  head. 

The  longitudinal  joints  are  to  be  so  located  that,  when  the 
pipe  is  laid,  they  shall  lie  on  top  thereof  alternately  to  right  and 
left  of  the  vertical  axial  plane,  and  so  that  the  nearer  row  of  longi- 
tudinal rivets  shall  be  six  (6)  inches  therefrom. 

All  pipe  shall  be  formed  to  correct  cylindrical  shape,  and  any 
lengths  discovered  to  be  out  of  true  will  be  rejected. 


46 


SPECIFICATIONS    AND    CONTRACTS. 


Angles  and  Curves 


Protection 


Where  the  pipe  passes  beneath  any  railroad  track,  it  shall  be 
stiffened  as  follows: 

Six  (6)  longitudinal  angle-irons  3  inches  x  3  inches  x  %  -inch  shall 
be  spaced,  as  nearly  as  possible,  equi-distant  around  the  periphery 
of  the  pipe  and  riveted  thereto,  fillers  being  placed  beneath  them 
to  afford  a  flush  bearing.  These  angle-irons  are  to  be  twenty-seven 
(27)  feet  long,  as  they  must  run  without  splicing  the  full  length  of 
the  four  (4)  continuous  seven-foot  sections. 

At  the  middle  of  each  seven-foot  section  there  is  to  be  a  ring 
of  3-inch  x  3-inch  x  %-inch  angles  in  six  (6)  pieces  (so  as  to  lie 
between  the  longitudinal  stiffeners)  riveted  to  the  pipe. 

Finally,  there  is  to  be  a  single  6-inch  x  3^ -inch  x  ^ -inch  angle- 
iron  bent  to  a  true  circle  with  the  long  leg  vertical,  the  said  leg 
riveting  to  the  vertical  legs  of  the  previously  mentioned  ring  angles. 

It  will  be  necessary  to  notch  the  six-inch  leg  so  as  to  straddle 
the  radial  legs  of  the  longitudinal  stiffeners. 

The  joint  in  this  outer  ring  is  to  be  placed  opposite  the  middle 
of  one  of  the  six  pieces  of  circular  angle-iron,  and  the  said  joint  is 
to  be  spliced  with  a  piece  of  plate  ten  (10)  inches  wide,  bent  to  fit 
outside  of  the  6-inch  x  3%-inch  angle. 

The  details  of  the  stiffening  are  shown  clearly  on  one  of  the 
accompanying  drawings. 

Where  two  of  these  stiffened  pipes  come  together  in  the  field, 
each  opposing  pair  of  longitudinal  stiffeners  is  to  be  spliced  by 
attaching  to  the  vertical  leg  thereof  a  piece  of  3-inch  x  3-inch  x 
%-inch  angle,  two  (2)  feet  long,  riveted  through  one  leg  to  the 
stiffeners  and  through  the  other  to  the  pipe,  there  being  four  (4) 
rivets  to  each  leg  on  each  side  of  the  joint. 

FORMATION  OF  ANGLES  AND  CURVES. 

Where  angles  or  curves  occur  in  the  alignment  or  grade  of  the 
pipe  line,  the  plates  are  to  be  cut  and  punched  to  the  required  bevel 
so  as  to  produce  an  oblique  angle  at  the  circular  seam,  carrying  this 
style  of  construction  over  a  sufficient  length  of  pipe  to  secure  the 
total  deflection  required.  It  may  in  some  cases  be  necessary  to 
enlarge  slightly  the  exterior  lengths  of  pipe;  but  extra  care  will  have 
to  be  taken  to  caulk  all  such  oblique  joints. 

PROTECTION  OF  METAL. 

The  pipe  shall  be  dipped  vertically  in  a  bath  of  Assyrian 
Asphalt,  Smith's  Durable  Metal  Coating,  Mineral  Rubber  Coatingr 


SPECIFICATIONS    AND    CONTRACTS.  47 

or  some  other  paint  which,  in  the  opinion  of  the  Engineer,  is  equally 
as  good  as  any  of  those  just  named. 

The  coating  shall  be  heated  to  a  temperature  of  four  hundred 
(400)  degrees  F.  or  more,  and  all  pipes  shall  receive  a  uniform 
coating  of  not  less  than  one-thirty-second  (1-32)  of  an  inch  in 
thickness. 

After  the  sections  have  been  removed  from  the  dipping  tank, 
they  shall  be  set  vertically  to  dry.  All  joints  shall  receive  three 
(3)  coats  of  paint  before  they  are  riveted  up.  All  spots  on  which 
the  coating  has  been  injured  in  handling  must  be  thoroughly 
recoated. 

The  particular  kind  of  coating  to  be  used  will  be  decided  later 
by  the  Engineer." 

And  now,  although  I  have  read  many  of  these  specific  clauses  Conclusion 
simply  by  title,  intending  to  let  you  study  them  thoroughly  later  on 
if  you  so  desire,  it  appears  to  me  that  you  have  had  about  enough 
of  this  ultra-technical  discourse,  and  that,  if  I  don't  cease  talking 
pretty  soon,  you  will  be  tempted  to  nickname  me  "Dr.  Dryasdust"; 
consequently,  I  shall  say  no  more  about  specifications,  except  that  I 
advise  every  one  of  you  to  make  a  special  study  of  the  subject;  first, 
by  collecting  and  perusing  carefully  a  number  of  truly  first-class 
specifications  written  by  engineers  of  wide  experience;  and,  second, 
by  attempting  to  write  for  yourselves  specifications  for  various 
types  of  engineering  construction.  Remember  that  you  cannot  hope 
to  learn  to  write  even  approximately  complete  and  correct  specifica- 
tions until  after  you  have  had  many  years  of  practical  experience 
in  engineering  work;  therefore,  do  not  be  discouraged,  if  at  first 
you  find  the  task  too  great  for  your  unavoidably  limited  experience. 

In  concluding  this  series  of  lectures,  I  beg  to  thank  you,  young 
gentlemen,  for  the  attention  and  courtesy  you  have  shown  me  and 
for  the  appreciation  of  my  efforts  that  you  have  manifested. 


Writing   Specifica- 
tions 


Adopting  Others' 
Work 


Drawings 


Topics 


Examples  for  Practice  in  Specification 
Writing. 


Before  the  student  attempts  to  write  one  of  the  specifications 
outlined  in  the  following  list,  he  should  obtain  and  study  one  or 
more  actual  specifications  for  similar  work.  To  this  end  the  pro- 
fessor should  make  and  retain  for  the  use  of  his  classes  a  large 
collection  of  good,  sound  specifications,  dealing  with  the  various 
types  of  construction  covered  in  the  list. 

The  student  is  warned  against  copying  blindly  from  these 
documents,  for  they  should  be  employed  merely  as  guides  to  indi- 
cate the  ground  that  ought  to  be  covered  in  the  specification  that 
is  about  to  be  prepared.  In  case  it  is  desirable  to  shorten  the 
student's  work,  it  will  be  proper  for  him  to  give  merely  the 
headings  for  various  paragraphs  that  are  of  a  standard  nature, 
and  to  refer  concerning  them  to  certain  well-known  general  specifi- 
cations, such,  for  instance,  as  those  of  the  author's  De  Pontibus;  but 
it  would  not  be  right  so  to  refer  to  any  special  specifications  that 
are  not  available  to  the  public.  For  example,  it  would  be  eminently 
correct  to  refer  to  Cooper's  Bridge  Specifications,  but  not  to  those 
of  the  Pennsylvania  Railroad  Company. 

If  the  student's  specifications  are  assumed  to  have  drawings 
attached,  the  first  thing  for  him  to  do  is  to  determine  in  his  mind 
exactly  of  what  these  drawings  should  consist,  how  many  sheets  they 
should  occupy,  and  what  each  sheet  should  contain;  then  he  should 
prepare  a  descriptive  list  of  them  for  insertion  in  the  proper  place 
in  the  specifications,  which,  by  the  way,  is  near  the  beginning. 

The  next  step  to  take  is  to  make  a  complete  list  of  headings 
and  then  arrange  these  in  proper  order.  On  page  10  will  be  found 
an  alphabetically  arranged  list  of  headings  for  certain  specifications 
that  can  be  used  as  a  guide  in  determining  the  ground  that 
the  student  should  cover;  and  he  is  likely  to  obtain  considerable 
assistance  on  this  point  by  a  perusal  of  actual  specifications  of  a 
like  character.  The  list  of  headings  should  be  made  in  some  logical 
order — i.  e.,  the  various  items  should  not  be  inserted  at  haphazard. 


SPECIFICATIONS    AND    CONTRACTS.  49 

The  best  arrangement   is  perhaps  chronological   in  respect  to   the 

0 

building  of  the  structure  under  consideration;  but  it  is  not  prac- 
ticable to  follow  this  order  rigidly  throughout  the  entire  document, 
for  there  are  many  items  that  are  absolutely  independent  of  any 
chronological  sequence.  Failing  the  latter,  a  good  rule  to  go  by  is 
that  one  item  ought  naturally  to  suggest  the  succeeding  one.  If 
these  two  ideas  be  kept  in  mind  and  be  allowed  to  govern,  the  result 
of  the  student's  effort  at  technical  writing  will  not  be  open  to  severe 
criticism  because  of  want  of  proper  continuity. 

After  the  student  has  finished  writing  a  set  of  specifications, 
and  has  numbered  the  pages  thereof,  he  should  prepare  an  alpha- 
betical index  of  headings  with  the  page  numbers  alongside. 

The  following  forty  examples  are  of  a  diverse  character,  con-  Remarks 
sequently  the  student  can  have  a  choice  of  subjects;  and,  moreover, 
he  can  choose  also  as  to  the  comparative  difficulty  or  complexity 
of  the  specifications  he  is  to  write,  because  some  of  the  examples  are 
simple  while  others  are  not.  None,  however,  are  extremely 
difficult,  but  few  of  them  being  as  complex  as  the  average  specifi- 
cations of  most  engineers'  every-day  practice. 

If  the  student  find  that  the  data  given  for  any  of  these 
"Examples"  are  insufficient  for  his  purpose,  he  will  be  at  liberty 
to  supply  the  omissions  or  deficiencies  according  to  his  bast  judg- 
ment. 

All  the  specifications  should  be  drawn  with  the  idea  in  view  of 
calling  for  tenders  on  the  work. 

EXAMPLE   NO.    1. 

Prepare  complete  specifications  for  a  concrete  retaining  wall,  Retaining  Wall 
from  twelve  (12)  to  twenty-one  (21)  feet  high  above  base  of  footing 
course  and  twelve  hundred  and  fifty  (1,250)  feet  long,  to  hold  back 
a  sloping  bank  of  earth,  the  foundations  to  be  at  least  five  (5)  feet 
below  the  surface  of  the  ground.  Joints,  to  prevent  cracking,  are'to 
be  placed  at  intervals  of  not  mere  than  forty  (40)  feet.  The  work, 
which  is  located  in  New  Westminster,  British  Columbia,  is  to  be 
built  by  the  Government  of  that  Province.  Payments  are  to  be 
made  monthly  on  the  Engineer's  estimates  with  the  usual  retention 
of  ten  (10)  per  cent,  thereof  until  the  completion  of  the  contract. 

Portland  cement  is  to  be  used  exclusively  for  the  concrete.   The 
wall  is  to  be  strictly  first-class  in  every  particular. 
EXAMPLE   NO.   2. 

Prepare  complete  specifications  for  a  concrete  arch  culvert  ten   Arch  Culvert 
(10)  feet  in  diameter  and  one  hundred  and  twenty-eight  (128)  feet 


50 


SPECIFICATIONS    AND    CONTRACTS. 


Grading 


Bock  Tunnel 


Tunnel   in   Clay 


long,  to  be  covered  later  by  an  earth  embankment  about  forty  (40) 
feet  high.  Location,  near  Buda,  Texas,  on  the  I.  &  G.  N.  Ry.  Con- 
struction first-class  throughout.  The  opening  at  present  is  main- 
tained by  a  wooden  trestle.  Provide  for  non-interference  with 
railroad  traffic.  The  work  must  be  done  in  the  dry  season  when 
there  is  very  little  water  passing. 

EXAMPLE  NO.   3. 

Prepare  complete  specifications  for  doing  all  the  grading  (solid 
rock,  loose  rock,  and  earth)  for  a  railroad  fifty-four  (54)  miles  long, 
starting  at  Palestine,  Texas,  and  running  northward. 

EXAMPLE  NO.  4. 

Prepare  complete  specifications  for  building  a  tunnel  eight 
hundred  and  fifty-five  (855)  feet  long  through  rock  for  a  single-track 
railway  that  is  not  yet  in  operation,  although  the  track  reaches  near 
both  ends  of  the  hill  through  which  the  tunnel  is  to  pass.  The  roof 
may  or  may  not  need  lining,  for  the  character  of  the  rock  is  as  yet 
undetermined,  except  on  the  surface  where  it  gives  promise  of  being 
hard  within. 

Bids  are  to  be  called  for  per  lineal  foot  of  tunnel  both  unlincd 
and  lined. 

EXAMPLE  NO.  5. 

The  Metropolitan  Street  Railway  Company  had  a  tunnel  along 
Eighth  street  in  Kansas  City,  Mo.,  in  which  the  grade  was  nine 
and  one-half  (9.5)  per  cent,  and  desired  by  starting  at  the  west 
end  to  lower  the  bottom  so  as  to  change  the  grade  to  four  and  one- 
half  (4.5)  per  cent.  The  material  was  stratified  rock  of  a  very 
variable  character,  full  of  faults  and  clay  seams.  On  this  account 
special  care  had  to  be  taken  to  prevent  caving  in  and  bulging  of 
sides,  also  undermining  of  roof.  Small  blasts  were,  therefore, 
necessitated. 

No  attempt  was  made  to  maintain  traffic  during  the  reconstruc- 
tion. 

Wherever  soft  material  was  found  under  the  side  walls  it  had 
to  be  removed  and  replaced  with  first-class  Portland  cement  concrete. 

From  the  east  end  of  the  tunnel  to  Broadway  there  was  to  be 
an  open  cut,  mostly  through  earth,  with  substantial  side  walls  of 
concrete.  In  doing  this  part  of  the  excavation  there  was  great 
danger  of  undermining  the  foundations  of  some  adjacent  high  build- 
ings. Assume  that  complete  detail  plans  for  the  reconstruction  were 


SPECIFICATIONS    AND    CONTRACTS.  51 

on  file  at  the  Engineer's  office  of  the  Metropolitan  Street  Railway 
Company,  and  prepare  a  proper  set  of  specifications  on  which  to 
call  for  bids. 

EXAMPLE   NO.   6. 

Prepare  complete  specifications  for  the  manufacture  and  putting  Pipe  Line 
in  place  of  a  forty-eight  (48)  inch  steel  riveted  pipe-line  made  of 
half-inch  metal,  about  four  and  a  half  (4.5)  miles  long,  with  man- 
holes every  five  hundred  (500)  feet  General  depth  of  top  of  pipe 
below  surface  of  ground  to  be  four  (4)  feet.  There  are  six  (6) 
under-crossings  of  railroad  tracks  requiring  the  pipe  there  to  be 
properly  stiffened  so  as  to  carry  the  weight  of  passing  trains. 

Pipe  to  be  lap-jointed;  rivets  %  inch  in  diameter,  staggered. 
Shop  riveting  to  be  done  by  power,  and  all  field  riveting  by  pneu- 
matic hammers. 

About  fifteen  (15)  per  cent,  of  the  line  is  to  be  on  curves,  as 
shown  by  plans  and  profiles  on  file  in  the  City  Engineer's  office  at 
Des  Moines,  Iowa,  near  which  city  the  line  is  to  be  built  to  convey 
the  main  water  supply  for  the  said  city. 

The  pipe  is  to  be  tested  in  sections  under  a  static  pressure  of 
one  hundred  and  thirty  (130)  pounds  per  square  inch. 

Time  limit  for  completion  of  work  is  to  be  eight  (8)  months. 

Bids  are  to  be  per  pound  of  pipe  in  place,  and  per  cubic  yard 
of  earth  and  rock  excavated,  including  backfilling. 

Special  attention  must  be  given  in  the  specifications  to  the 
painting  of  pipe  and  to  making  it  perfectly  tight. 

The  student  will  be  at  liberty  in  this  "Example"  to  refer  to 
certain  clauses  in  the  specifications  of  De  Pontibus,  or  other  standard 
specifications  for  steelwork,  so  as  to  shorten  his  labor  as  much  as 
possible. 

EXAMPLE  NO.  7. 

Prepare  the  specifications  for  the  concrete  piers  and  abutments      -*"1611*8  and 
of  a  single-track  railway  bridge  about  fifteen  hundred   (1,500)   feet 
long,   consisting   of   fifteen    (15)    deck,   plate-girder   spans.     Bed   of 
stream  is  solid  rock  that  will  not  have  to  be  cut  into  more  than  a 
foot  to  obtain  a  satisfactory  foundation. 

The  stream  is  practically  dry  for  six  (6)  consecutive  months  of 
the  year,  and  the  construction  is  to  be  done  during  the  dry  season. 
The  surface  of  the  bed-rock  is  almost  horizontal  over  the  entire 
crossing.  Distance  from  grade  to  bed-rock  is  about  sixty  (60)  feet. 
No  ice-breaks  on  piers  will  be  required. 


52 


SPECIFICATIONS    AND    CONTRACTS. 


The  structure  is  for  a  new  line,  hence  it  will  not  be  necessary 
to  figure  on  maintaining  traffic. 

There  is  a  quarry  of  good  rock  for  broken  stone  quite  near 
the  bridge  site,  and  satisfactory  sand  can  be  had  for  the  digging 
within  three  (3)  miles.  The  nearest  railroad  station  is  about  two 
(2)  miles  from  the  site.  The  location  of  the  work  is  in  western 
Texas.  Bids  are  to  be  called  for  at  schedule  rates. 

EXAMPLE  NO.  8. 

Masonry  Piers  Prepare  complete   specifications  for  stone  masonry  piers  with 

concrete  backing  for  the  same  crossing,  taking  the  stone  from  the 
same  quarry  as  before.  Masonry  to  be  first  class.  Foundation  pits 
to  be  leveled  off  with  concrete.  Bids  are  to  be  called  for  at  schedule 
rates. 

EXAMPLE  NO.  9. 

Railroad  Bridge  Prepare  complete  specifications  for  the  substructure  of  a  single- 

track  railroad  bridge  across  the  Papaloapam  River  in  Mexico,  con- 
sisting of  two  (2)  concrete  abutments  resting  on  pile  foundations 
(the  tops  of  the  piles  being  encased  in  the  concrete),  five  (5)  ordi- 
nary piers,  and  one  pivot  pier.  The  concrete  shafts  of  the  piers 
rest  on  timber  cribs  and  caissons  sunk  by  open  dredging  about  fifty 
(50)  feet  below  the  bed  of  the  river,  which  is  about  forty  (40)  feet 
below  the  grade  line  of  structure.  Width  of  river  about  eleven 
hundred  (1,100)  feet.  A  satisfactory  mixture  of  clean  sand  and 
gravel  can  be  dug  from  the  river  bed  near  the  site  and  used  for 
concrete  as  it  is  found,  but  the  proper  amount  of  cement  for  filling 
the  voids  must  be  determined  often  by  measuring  the  latter. 

The  timber  for  the  cribs  and  caissons  must  be  imported  from 
Louisiana  or  Texas.  All  materials  will  be  delivered  at  bridge  site 
free  of  charge  for  hauling  over  the  railroad  company's  lines. 

Seven  (7)  months  from  the  date  of  signing  the  contract  will  be 
allowed  for  completing  the  work.  Liquidated  damages  are  to  be 
one  hundred  dollars  ($100)  gold  per  day.  Bids  are  to  be  called 
for  in  American  money  as  follows:  Per  cubic  yard  of  mass  of  cribs 
and  caissons  in  place.  Per  cubic  yard  of  shafts  of  piers  and  of 
portions  of  abutments  above  low-water  level  as  the  latter  is  shown  on 
the  accompanying  plans.  Per  cubic  yard  of  those  parts  of  the  abut- 
ments below  low-water  level,  including  portions  of  piles  encased  in 
the  concrete.  Per  lineal  foot  of  piles  in  place  projecting  below  the 
concrete  in  the  abutment  foundations. 


SPECIFICATIONS    AND    CONTRACTS.  53 

EXAMPLE   NO.   10. 

Prepare  the  specifications  for  a  reinforced-concrete   arch  high-   Reinforced-Concrete 

Arch  Bridge, 
way    bridge    of   one   hundred   and   five    (105)    feet  clear   span   and 

twenty  (20)  feet  rise,  resting  on  a  solid  rock  foundation  and  spring- 
ing from  the  rocky  sides  of  a  gorge  above  high-water  mark,  the  clear 
width  of  roadway  between  parapet  walls  being  thirty-four  (34)  feet. 
Assume  that  there  is  no  special  risk  from  floods  during  erection. 

Bids  are  to  be  per  cubic  yard  of  concrete  and  per  pound  of  the 
reinforcing  metal,  also  per  cubic  yard  for  excavation  in  both  rock 
and  earth. 

EXAMPLE  NO.   11. 

Prepare  the  specifications  for  a  main  sewer  of  concrete,  two  Main  Sewer 
and  a  half  (2%)  miles  long  and  six  (6)  feet  in  diameter,  for  the 
city  of  Rochester,  N.  Y.,  and  provide  for  the  connections  for  lateral 
sewers,  ventilators,  man-holes,  and  all  other  details.  Excavation  is 
partly  through  earth  and  partly  through  rock.  In  one  stretch  of  a 
quarter  of  a  mile  the  foundation  is  so  soft  and  wet  as  to  require 
piling.  Call  for  bids  per  lineal  foot  of  finished  sewer  in  accord  with 
the  plans  and  specifications  which  are  on  file  in  the  City  Engineer's 
Office. 

EXAMPLE  NO.  12. 

Prepare  complete  specifications  for  the  manufacture  and  ship-  R-  R-  Bridge 
ment  of  the  metal-work  for  four  (4)  single-track,  through,  riveted- 
truss  spans,  each  two  hundred  (200)  feet  long,  measured  between 
centers  of  pedestal  pins,  designed  according  to  Class  R.  of  Waddell's 
"Specifications  for  Steel  Bridges,"  and  weighing  about  2,650  pounds 
per  lineal  foot  of  span.  Point  of  delivery  of  metal  is  Beaumont, 
Texas. 

Time  allowed  for  manufacture  and  delivery  is  four  (4)  months. 
Metal  is  medium  steel.  Four  (4)  sheets  of  drawings  will  be 
required. 

EXAMPLE  NO.  13. 

Prepare  complete  specifications  for  the  manufacture  of  a  stcel  Water-Tank 
cylindrical  steel  water-tank,  twenty  (20)  feet  in  diameter  and  sixteen 
(16)  feet  high,  carried  by  a  braced  steel  tower  fifty  (50)  feet  high, 
resting  on  concrete  pedestals  that  are  supported  on  earth  founda- 
tions capable  of  withstanding  a  vertical  load  of  four  thousand 
(4,000)  pounds  per  square  foot. 

Location  alongside  of  a  railroad  in  a  small  Missouri  city. 


54 


SPECIFICATIONS    AND    CONTRACTS. 


R.  R.  Trestle 


Concrete  Dam 


Railroad 


Timber  Pier 


Call  for  bids  per  pound  of  metal  erectad  and  painted  and  per 
cubic  yard  of  concrete  in  place,  no  direct  payment  being  made  for 
excavation. 

EXAMPLE  NO.   14. 

Prepare  complete  specifications  for  a  single-track  railroad  trestle 
to  be  built  of  long-leaf  yellow  pine  timber,  resting  on  cypress  piles 
of  best  quality.  Length  of  trestle  about  two  thousand  (2,000)  feet, 
and  average  height  from  ground  to  grade  about  thirty-five  (35)  feet. 

Piles  to  be  creosoted  and  timber  to  be  painted  with  Carbolineum. 

Call  for  bids  for  timber  in  place,  painted,  per  M.  ft.  B.  M., 
creosoted  piles  left  in  place  per  lineal  foot  of  pile,  cut-off  ends  of 
same  per  lineal  foot,  iron  in  place  per  pound,  and  laying  rails  per 
lineal  foot  of  track,  the  rails  being  furnished  by  the  railroad 
company. 

EXAMPLE   NO.   15. 

Prepare  complete  specifications  for  a  curved  concrete  dam  sixty 
(60)  feet  high  and  seven  hundred  and  twenty  (720)  feet  long, 
located  at  a  narrow  part  of  a  rocky  gorge,  near  Boulder,  Colo. 
Bottom  and  sides  of  the  canon  are  of  solid  rock.  Large  quantities 
of  water  pass  in  the  wet  season,  but  there  is  practically  none  passing 
in  the  dry  season,  which  is  usually  of  seven  (7)  months'  duration. 
Plenty  of  good  stone  and  sand  for  concrete  are  to  be  found  near  the 
site,  but  the  cement  will  have  to  be  transported  by  wagon  thirty- 
five  (35)  miles  from  the  nearest  railroad  station.  Provide  for  a 
temporary  dam  of  timber  and  clay  to  hold  back  the  small  amount  of 
water  passing  in  the  dry  season,  in  order  that  the  footing  of  the 
concrete  dam  may  be  built  in  the  dry. 

EXAMPLE  NO.  16. 

Prepare  specifications  for  the  building  of  a  railway,  complete  in 
every  particular  (excepting  only  the  bridges,  buildings,  and  rolling- 
stock),  one  hundred  and  twenty  (120)  miles  long,  located  in  the 
State  of  Washington.  The  contract  is  to  be  let  at  schedule  prices 
for  everything,  and  the  entire  work  is  to  be  completed  and  turned 
over  to  the  Company  within  twelve  (12)  months. 

EXAMPLE  NO.  17. 

Prepare  complete  specifications  for  a  pier  to  be  built  of  creosoted 
timber  and  piles  in  Galveston  Bay.  Length,  six  hundred  and  forty 
(640)  feet,  width  sixty-four  (64)  feet,  and  height  eighteen  (18)  feet 
above  extreme  low-water  level. 


SPECIFICATIONS    AND    CONTRACTS.  55 

The  construction  to  be  of  the  most  substantial  character,  and 
the  piling  to  be  thoroughly  sway-braced.  Deck  to  be  built  of  six- 
(6)  inch  planks.  Structure  to  carry  two  railway  tracks  at  middle 
over  its  whole  length. 

Live  load  350  pounds  per  square  foot  of  floor. 

EXAMPLE  NO.  18. 

Prepare  complete  specifications   for   a   deck,    plate-girder   turn-    Turntable 
table  on  a  concrete  foundation  and  having  the  pit-wall  also  of  con- 
crete.    Capacity  must  be  great  enough  to  take  care  of  the  longest 
and  heaviest  locomotives  ever  built.     To  be  operated  by  electricity. 

N.  B. — The  specifications  need  not  cover  the  operating  machin- 
ery, except  in  a  merely  descriptive  manner. 

EXAMPLE  NO.  19. 

The  metal-work  for  two   (2)  through,  riveted  spans  of  one  hun     Cleaning  and  Re- 
painting 

dred  and  twenty  (120)  feet  each  and  for  three  (3)  deck,  plate- 
girder  spans  of  forty  (40)  feet  each  was  dropped  overboard  by  the 
capsizing  of  a  barge  in  the  harbor  of  Vera  Cruz,  Mexico,  and  was 
afterward  raised,  taken  ashore,  and  piled.  The  result  was  that  it 
rusted  very  badly  and  had  to  be  thoroughly  cleaned  by  sand-blast, 
etc.,  and  repainted  before  being  shipped  to  bridge  site. 

Prepare  the  specifications  for  cleaning  and  repainting  the  said 
metal-work. 

EXAMPLE  NO.  20. 

Prepare  complete  specifications  for  building  a  brick  chimney  two    Brick  Chimney 
hundred  and  fifty   (250)   feet  high  for  the  Orford  Copper  Company 
on  Staten  Island,  N.  Y. 

The  contract  to  be  let  for  a  lump  sum.  Foundation  is  hard 
clay. 

EXAMPLE  NO.  21. 

Prepare  complete  specifications  for  building  a  brick  well  fifty    Well 
(50)   feet  in  diameter  and  forty   (40)   feet  deep,  resting  on  a  steel 
curb  and  sunk  through  sand  to  obtain  a  water-supply.     Contract  to 
be  let  for  a  lump  sum. 

EXAMPLE  NO.  22. 

Prepare  complete  specifications  for  building  two  parallel  rock-  Rock  Jetties 
jetties,  each  about  half  a  mile  long,  at  Brazos  de  Santiago, 
Texas,  so  as  to  obtain  a  channel  having  a  minimum  depth  of 
fourteen  (14)  feet,  the  distance  apart  of  the  jetties  being  about  five 
hundred  (500)  feet.  The  work  is  to  be  done  by  contract  with  the 
United  States  Government. 


56 


SPECIFICATIONS    AND    CONTRACTS. 


Dyke 


Settling    Basins 


Asphalt  Paving 


Wood-Block  Paving 


Excavation 


Bids  are  to  be  made  per  lineal  foot  of  jetty  for  heights  measured 
from  base  to  top,  varying  by  one  foot,  from  a  minimum  of  six 
(6)  feet,  to  a  maximum  of  twenty-four  (24)  feet. 

EXAMPLE  NO.  23. 

Prepare  the  specifications  for  a  trailing,  wattled-pile  dyke,  three- 
quarters  of  a  mile  long,  with  wattled  cross-dykes  at  intervals  of 
about  three  hundred  (300)  feet,  to  be  built  along  the  bank  of  the 
Missouri  River  at  East  Omaha,  Neb.,  mainly  for  the  purpose  of 
stopping  the  river's  encroachment,  but  incidentally  also  for  making 
land  so  as  to  increase  the  holdings  of  the  East  Omaha  Land  Com- 
pany. The  front  of  the  trailing  dyke  is  to  be  protected  against 
scour  by  a  woven  willow  mattress  sixty  (60)  feet  wide  and  as  long 
as  the  dyke,  the  piles  of  the  latter  being  driven  through  the  mat- 
tress near  the  shore  edge. 

Bids  are  to  be  made  per  lineal  foot  of  pile  in  place,  per  M.  ft. 
B.  M.  of  timber  in  place,  per  pound  of  iron  in  place,  and  per  square 
foot  of  mattress  complete  in  place,  including  the  anchorage  stones. 

EXAMPLE  NO.   24. 

Prepare  complete  specifications  for  four  (4)  settling  basins  to 
be  constructed  for  the  purpose  of  purifying  the  water  supply  of 
Richmond,  Va.,  and  to  provide  for  the  needs  of  a  city  of  125,000 
inhabitants. 

Bid  to  be  called  for  by  a  lump  sum. 

EXAMPLE  NO.  25. 

Prepare  complete  specifications  for  paving  with  asphalt  a  street 
in  Baltimore  four  thousand  eight  hundred  and  fifty  (4,850)  feet 
long  and  forty-four  (44)  feet  wide  between  curb  lines.  Entire  con- 
struction to  be  of  the  very  best.  Tenders  to  be  made  per  square 
yard  of  finished  pavement. 

EXAMPLE  NO.   26. 

Prepare  similar  specifications  for  the  same  contract,  but  using 
creosoted  yellow  pine  blocks  instead  of  asphalt. 

EXAMPLE  NO.  27. 

The  earth  has  been  excavated  to  the  full  depth  of  the  founda- 
tions for  a  large  building  in  Chicago,  and  the  bearing  capacity  of 
the  soil  is  to  be  tested  at  a  number  of  points  distributed  with  some 
uniformity  over  the  whole  area.  A  special  apparatus  is  to  be 
designed  for  loading  with  pig-iron. 

The  work  is  to  be  paid  for  at  actual  cash  cost,  plus  a  percentage 
thereof  for  profit  to  be  named  by  each  bidder  tendering,  the  one 


SPECIFICATIONS    AND    CONTRACTS.  57 

naming  the  lowest  percentage  to  receive  the  award  of  the  contract, 
only  responsible  parties  being  permitted  to  compete.  Prepare  the 
necessary  specifications. 

EXAMPLE  NO.  28. 

Prepare  complete  specifications  for  building  three  and  one-  Electric  Railway 
quarter  (3%)  miles  of  double  track  for  an  electric  railway  on  the 
paved  streets  of  the  city  of  Chicago,  including  the  furnishing  and 
placing  of  stone-block  pavement  on  the  space  between  the  two  outer 
rail':  and  on  two  (2)  feet  outside  thereof.  Rails  to  weigh  ninety 
(90)  pounds  per  yard,  and  ties  to  be  of  creosoted,  long-leaf,  yellow 
pine. 

Bids  are  to  be  made  per  lineal  foot  of  double  track.     Describe 
carefully  in  detail  the  style  of  track  and  pavement. 

EXAMPLE  NO.  29. 

Prepare  specifications  for  the  metal-work  of  a  large,  steel-skeleton  steel  Building 
building  to  be  erected  in   New  York  City.     It  will  be  permissible 
when  treating  of  character  of  metal  and  metal-work  to  refer  clause 
by   clause   to   well-known   standard    specifications    for   manufacture 
of  steel  and  of  steel  structures. 

Assume   the   various   leading   dimensions   of   the   building   and 
describe  in  detail  the  design  of  the  metal-work. 

Bids  are  to  be  by  the  pound  of  metal  erected  and  painted. 

EXAMPLE  NO.   30. 

The  new  five  hundred  and  twenty  (520) -foot  swing  span  of  the   Swingbridge 
East  Omaha  bridge  over  the  Missouri  River  has  located  in  its  tower 
a  small  power-house,  absolutely  fireproof,  to  contain  a  portion  of  the 
electrical  machinery.     The  construction  is  of  steel  and  concrete. 

Draft  the  specifications  for  such  a  house. 

EXAMPLE  NO.  31. 

Prepare  complete  specifications  for  a  through  train-shed  to  be  Train-Shed 
built  on  the  reclaimed  lands  at  the  north  end  of  Kansas  City,  Mo., 
the  length  being  nine  hundred  (900)  feet  and  the  width  two  hundred 
and  eighty  (280)  feet.  Use  tin  roof  of  best  quality,  wooden  louvres, 
skylights  of  wired  glass,  copper  gutters  and  down-spouts,  and  all 
other  details  of  the  very  best  kinds  employed  in  similar  structures. 
The  trusses  are  to  be  of  the  cantilever  type,  each  resting  on  two 
columns  that  must  act  also  as  beams  to  resist  the  wind  pressure. 
There  are  to  be  no  side  walls,  excepting  that  at  the  south  side  of 
the  shed  the  north  wall  of  the  depot  building  will  serve  as  such. 
The  foundations  are  to  be  large  concrete  pedestals  resting  on  piles 


58 


SPECIFICATIONS    AND    CONTRACTS. 


of  concrete  or  creosoted  timber  driven  to  whatever  depths  may  be 
found  necessary. 

EXAMPLE  NO.  32. 

Roundhouse  Prepare  complete  specifications  for  a  brick  roundhouse  to  accom- 

modate twelve  (12)  locomotives.  Foundations  to  be  of  concrete 
resting  on  hard  clay. 

EXAMPLE  NO.  33. 

Sea  Buoy  Prepare  complete  specifications  for  a  large  sea-buoy  to  be  built 

of  steel,  including  the  necessary  cable  and  anchor  or  anchors.  In 
respect  to  character  and  quality  of  materials  and  workmanship  it 
will  be  permissible  to  refer  to  standard  clauses  of  well-known  specifi- 
cations for  steel  construction.  The  item  of  water-tightness  should 
receive  special  consideration. 

EXAMPLE  NO.  34. 

Floating  Foundation  Prepare  complete  specifications  for  a  floating  foundation  of  steel 

and  concrete  for  a  large  eight  (8) -story  hotel  building  for  the  city 
of  New  Orleans,  designed  according  to  the  author's  method  as  given 
in  his  paper  upon  "Foundations  for  Important  Buildings  in  the  City 
of  Mexico,"  which  paper  is  included  in  Mr.  John  Lyle  Harrington's 
book,  entitled  "The  Principal  Professional  Papers  of  Dr.  J.  A.  L. 
Waddell,  Civil  Engineer." 

As  in  other  cases  it  will  be  permissible  to  refer  to  certain  stand- 
ard clauses  concerning  materials  and  workmanship  for  the  steel 
as  given  in  well-known  specifications. 

EXAMPLE  NO.  35. 

Bridges  Referring  to  Case  No.  3  in  the  appended  examples  for  contract 

writing,  prepare  the  specifications  therein  mentioned  for  the  erection 
of  the  four  spans. 

EXAMPLE  NO.   36. 

Ocean  Pier  Referring  to  Cases  Nos.  8  and  9  in  the  appended  examples  for 

contract  writing,  prepare  the  specifications  therein  mentioned  for 
building  the  Ocean  Pier. 

EXAMPLE  NO.  37. 

Steel  Lighthouse  Prepare  complete  specifications  for  a  steel  lighthouse  supported 

on  screw-piles  to  be  erected  on  the  coast  of  Texas,  the  total  height 
being  one  hundred  and  five  (105)  feet  above  low  water,  and  the 
floor  of  the  living  rooms  being  placed  at  an  elevation  of  twenty-five 
feet  above  same.  The  specifications  for  the  lantern  itself  may  be 
omitted,  excepting  that  its  size  and  character  should  be  described. 
The  foundations  for  the  structure  are  solely  sand.  Bids  are  to  be 
by  lump  sum. 


SPECIFICATIONS    AND    CONTRACTS.  59 

EXAMPLE  NO.  38. 

Prepare  complete  specifications  for  the  erection  by  notation  at  Bridge 
Boca  del  Rio  (which  is  some  fifteen  (15)  miles  south  of  Vera  Cruz, 
Mexico)  of  eight  single-track  railroad,  deck,  plate-girder  spans,  the 
piers  and  abutments  for  which  are  in  place.  As  the  rise  and  fall  of 
tide  there  are  small  and  slow,  it  will  be  necessary  to  figure  on  letting 
water  into  the  barges  in  order  quickly  to  bring  the  spans  to  rest 
on  the  bridge  seats. 

Bids  are  to  be  per  pound  of  steel  erected  (the  metal  being 
furnished  by  the  railroad  company),  per  M.  ft.  B.  M.  of  timber 
furnished  and  put  in  place  by  the  contractor,  and  per  lineal  foot 
of  track  for  laying  the  rails,  which  are  to  be  provided  by  the 
company. 

EXAMPLE  NO.  39. 

Prepare    complete    specifications    for    a    steel    tower    somewhat   Tower 
similar  to  the  Eiffel  Tower  in  Paris,  a  quarter  of  a  mile  high  and 
having  a  base  four  hundred  and  forty    (440)    feet  square  between 
centers    of     main     pedestals,    to     be    constructed     in     the    city    of 
Chicago,  111. 

Foundations  of  the  concrete  pedestals  to  be  piling  of  concrete 
or  creosoted  timber.  Buildings  of  various  kinds  are  to  be  placed  at 
different  heights  in  the  tower,  and  near  the  top  there  .is  to  be  a 
dancing  pavilion. 

The  Author  once  made  a  design  for  such  a  tower,  but  prepared 
no  specifications.  He  would  be  pleased  to  furnish  copies  of  the 
drawings  to  any  student  who  desires  to  undertake  the  drafting  of 
specifications  for  this  "Example."  However,  he  does  not  advise 
many  of  them  to  try  it,  as  the  said  specifications  would  have  to  be 
long  and  complex,  although  portions  of  them,  such  as  those  for  the 
elevators  and  buildings  might  be  omitted. 

EXAMPLE  NO.  40. 

Prepare  complete  specifications  for  the  viaduct  referred  to  in  Viaduct 
Cases  Nos.  1  and  2  of  the  appended  examples  for  contract  writing. 
The  total  length  of  the  structure  is  about  twenty-five  hundred  and 
fifty  (2,550)  feet,  its  greatest  height  about  ninety-five  (95)  feet,  the 
width  of  main  roadway  thirty-four  (34)  feet,  and  that  of  each  of  the 
two  sidewalks  four  and  one-half  (4.5)  feet.  The  structure  is  to 
occupy  city  property  only,  being  located  entirely  on  Marshall  street. 

The  student  will  have  to  assume  the  quantities  of  the  various 
materials  on  which  he  is  to  call  for  bids,  as  these  have  not  yet  been 
computed. 


Engineering  Contracts. 


A   Lecture    to    Civil    Engineering    Students, 
Delivered  in  1905. 


introduction  YOUNG  GENTLEMEN — Some  two  years  ago  I  delivered  to  the  Senior 

Class  of  the  Rensselaer  Polytechnic  Institute  a  lecture  on  the  subject 
of  "Specifications,"  and  in  it  I  touched  but  lightly  on  that  of  "Con- 
tracts," merely  quoting  from  the  standard  form  of  contract  of  my 
firm  certain  clauses  that  were  needed  to  make  my  discourse  com- 
plete. Engineering  contracts,  however,  are  of  such  importance  to 
the  profession  as  to  be  worthy  of  a  special  lecture  devoted  to  their 
discussion,  and  this  I  purpose  giving  you  to-day.  The  fact  that  the 
subject  is  treated  very  thoroughly  in  several  standard  works  might 
at  first  thought  lead  one  to  believe  that  a  lecture  on  it  is  superfluous, 
but  such  is  not  the  case,  because  what  I  have  to  say  is  in  a  sense 
supplementary  to  that  which  is  found  in  the  books.  Moreover,  by 
discussing  it  from  the  strictly  practical  point  of  view,  and  thus 
making  it  more  interesting  than  a  study  of  law-books,  which,  as 
you  all  know,  are  notoriously  dry  reading,  I  hope  so  to  present  the 
matter  that  it  will  appeal  directly  to  engineering  students. 

Sequel   to   Speciflca-  In  one  sense  this  lecture  is  a  sequel  to  that  on  "Specifications," 

tions 

and  will  be  appreciated  better  by  those  who  have  read  the  latter; 

nevertheless,  I  shall  endeavor  to  make  the  treatment  of  the  new  sub- 
ject complete  in  itself  and  independent  of  the  preceding  lecture. 
The  general  plan,  however,  is  the  same  for  both — viz.,  a  dissertation 
concerning  the  theory  or  science  of  writing,  followed  by  illustrations 
taken  from  actual  practice. 

Contracts  and  Sped-  The  dividing  line  between  specifications  and  contracts  is  most 

fications    Distin- 
guished difficult  to  draw,  for  in  any  particular  case  two  engineers  will  rarely 

agree  as  to  what  clauses  pertain  properly  to  the  specifications  and 
what  to  the  contract,  of  which  the  specifications  form  a  part.  Some 
engineers  prefer  to  throw  nearly  everything  into  the  specifications 
and  thus  keep  the  size  of  the  contract  proper  as  small  as  possible,1 


1  Not  so  much  to  make  the  contract  small,  as  to  make  It  general  and 
applicable  to  many  cases  or  structures. 


SPECIFICATIONS   AND    CONTRACTS.  61 

while  others  make  the  latter  very  extensive  by  including  in  it  many 
clauses  that  are  ordinarily  found  in  the  specifications.  Again, 
others  make  a  practice  of  repeating  in  the  contract  certain  clauses 
that  have  already  been  covered  in  the  specifications.  In  my  opinion, 
the  last-mentioned  method  is  open  to  criticism  in  that  it  is  liable  to 
result  in  conflicting  clauses;  nevertheless,  it  is  quite  possible  that 
my  practice  has  not  invariably  been  entirely  free  from  this  objec- 
tionable feature — it  is  so  hard  to  be  always  consistent;  and  again, 
one's  methods  are  a  matter  of  development  and  are  not  created  per- 
fect at  one  essay. 

Before  proceeding  to  the  direct  treatment  of  my  subject  I  shall  Dividing  Line 
endeavor  to  make  clear  to  you  the  method  that  I  have  adopted  for 
locating  the  dividing  line  between  specifications  and  contracts.  I 
say  "endeavor"  advisedly,  for  I  am  not  sure  that  I  can  always  give 
a  satisfactory  rule  or  reason  for  any  particular  division;  because 
absolute  consistency  is  an  attribute  that,  strive  as  one  will  to  attain 
it,  lies  ever  just  beyond  reach.1 

My  preference  is  to  throw  as  much  of  the  matter  as  possible  into  Scope  of  Specifica- 
the  specifications  and  reduce  the  size  of  the  contract  proper  to  a 
minimum,  avoiding  repetition  of  statement  in  the  two  parts  of  the 
work,  but  of  necessity  treating  certain  subjects  in  both  parts,  though 
from  different  points  of  view.  There  is  no  doubt  about  the  proper 
place  for  most  of  the  topics  or  headings,  but  in  certain  cases  there 
are  plausible  reasons  for  locating  them  in  either  division.  All 
clauses  that  relate  to  methods  of  construction,  qualities  of  materials, 
character  of  the  work,  rules  limiting  the  functions  and  powers 
of  the  Contractor  and  defining  the  authority  of  the  Engineer, 
directions  to  bidders,  and  transportation  of  men  and  materials 
unquestionably  belong  to  the  specifications;  but  such  clauses 
as  those  relative  to  adherence  to  specifications,  alteration  of  plans, 
damages,  extras,  payments,  responsibility  for  accidents,  the  spirit  of 
the  specifications,  strictness  of  inspection,  liquidated  damages,  scope 
of  the  contract,  and  time  of  completion  might  perhaps  be  properly 
inserted  in  either  division.  My  custom,  however,  is  to  include  all 
of  these  clauses  and  others  of  like  character  and  scope  in  the 
specifications. 

Nine  out  of  ten  of  the  contracts  that  an  engineer  has  to  prepare  Sc°Pe  of  Contract 
are  in   connection  with  construction,   and   an  intelligent  specialist 


1  It  is  considered  excellent  practice  to  limit  the  general  covenants  and 
obligations  to  the  contract  and  to  include  in  the  specifications  matters  which 
are  special  to  the  particular  structure  in  hand,  and  which  are  matters  of 
engineering  and  architectural  construction. 


62  SPECIFICATIONS    AND    CONTRACTS. 

soon  learns  how  to  prepare  satisfactory  specifications  and  contracts 
for  all  ordinary  kinds  of  work;  but  this  style  of  contract  is  by  no 
means  the  only  type  with  which  an  engineer  is  concerned,  for  he  is 
sometimes  called  upon  to  draft  agreements  between  promoters  of 
enterprises  and  capitalists,  between  himself  and  promoters  of  enter- 
prises, between  two  engineers,  between  two  contractors,  or  between 
•  a  surety  company  and  a  contractor.  Some  of  these  unusual  types- 
are  exceedingly  difficult  to  draft  properly,  as,  owing  to  their  varying 
conditions,  they  cannot  be  systematized.  It  is  mainly  with  them, 
therefore,  that  this  lecture  on  contract  writing  is  concerned,  because 
for  construction  in  general  it  is  practicable  to  evolve  a  form  which, 
when  correctly  filled  out,  will  apply  to  any  ordinary  case. 

Contract  Writing  a  The  importance  of  drafting  contracts  properly  cannot  well  be 
overestimated.  An  incorrectly  drawn  agreement  is  almost  certain 
to  involve  serious  trouble  and  often  pecuniary  loss  to  an  innocent 
party;  hence  it  behooves  engineers  to  study  thoroughly  and  funda- 
mentally the  science  or  art  of  contract  writing. 

Whether  it  be  really  a  science  or  an  art  is  a  mooted  point;  but, 
in  my  opinion,  the  writing  of  proper  specifications  and  contracts  is 
certainly  worthy  to  be  termed  a  science. 

Desiderata..  Before  one  can  draft  a  contract,  he  must  have  clearly  in  mind  a 

full  and  well-defined  idea  of  all  the  conditions  and  desiderata,  and 
he  should  epitomize  these  systematically  before  beginning  to  write. 
It  is  advisable  to  keep  constantly  in  view  the  possibility  that  each 
party  to  the  contract  may  be  unscrupulous  and  willing  to  take  every 
possible  advantage  of  every  weakness  which  the  contract  may  con- 
tain and  which  will  tend  to  his  own  profit — honor  and  integrity  to 
the  contrary  notwithstanding.  Failure  to  do  this  will  often  result 
in  some  ambiguity  that  will  cause  rank  injustice  to  one  of  the  par- 
ties to  the  agreement.  It  is  difficult  for  an  engineer  to  recognize  this 
weakness  of  human  nature  and  to  bear  it  steadily  in  mind  when 
writing  contracts,  because  the  training  and  the  work  of  engineers 
tend  to  develop  in  them  to  an  eminent  degree  the  principles  of  abso- 
lute honesty;  consequently,  it  comes  hard  for  them  to  be  forced  to 
make  a  practice  of  doubting  the  integrity  of  their  business  associates. 
To  mistrust  the  motives  of  one's  fellow-men  is  disagreeable  but 
essential,  if  the  writer  of  specifications  and  contracts  is  to  protect 
himself  or  his  clients  from  loss  and  fraud. 

Misplaced  Confidence  Concerning  this  matter  I  speak  from  sad  experience,  for  in  my 
business  career  I  have  at  times  suffered  severely  from  the  ill-effects 
of  a  too-trusting  reliance  upon  the  honorable  intentions  of  those  with 


SPECIFICATIONS   AND    CONTRACTS.  63 

whom  I  have  done  business;  and,  while  this  unfortunate  experience, 
I  am  happy  to  say,  has  not  caused  me  to  mistrust  the  goodness  of 
human  nature  in  general,  it  has  taught  me  the  necessity  for  exercis- 
ing the  utmost  caution  in  drawing  contracts,  so  as  not  to  put  tempta- 
tion in  the  way  of  either  party  by  inserting  a  single  clause  of  which 
he  could  take  advantage  by  compelling  the  other  party  to  do  some- 
thing that  was  not  contemplated  when  the  agreement  was  made. 
Occasionally  it  happens  that  after  a  contract  is  executed,  one  of  the 
parties  finds  a  flaw  that  will  give  him  an  improper  advantage; 
and  it  is  only  a  strictly  just  and  upright  man  who  will  refuse  to 
avail  himself  of  such  a  weakness  in  the  document. 

The  essential  elements  of  any  contract,  according  to  Mr.  John    Essential   Elements 
Cassan  Wait,  the  noted  authority  on  "Engineering  and  Architectural 
Jurisprudence,"  are  as  follows: 

"1st.    Two  parties  with  capacity  to  contract. 

"2d.  A  lawful  consideration — a  something  in  exchange  for  its 
legal  equivalent,  a  quid  pro  quo. 

"3d.  A  lawful  subject-matter,  whether  it  be  a  promise,  an  act, 
or  a  material  object. 

"4th.  Mutuality — a  mutual  assent,  a  mutual  understanding,  a 
meeting  of  the  minds  of  the  parties." 

Without  these  four  elements  no  contract  is  binding  in  law. 

The  essentials  of  a  well-drawn  contract  that  comes  within  the    Engineering  Essen- 
tials 
province  of  the  engineer,  however,  are  as  follows: 

1st.     A  proper  and  customary  form. 

2d.  A  full  and  correct  description  of  all  parties  to  the  agree- 
ment. 

3d.    A  thorough  and  complete  preamble. 

4th.  A  statement  of  when  and  under  what  conditions  the  con- 
tract is  to  become  operative. 

5th.    The  limit,  if  any,  for  duration  of  contract. 

6th.  An  exhaustive  statement  of  what  each  party  to  the  con- 
tract binds  himself,  his  executors,  administrators,  successors,  or 
assigns  to  do  or  to  refrain  from  doing. 

7th.  A  clearly  defined  enunciation  of  the  consideration  which 
«ach  party  is  to  receive;  this  is  the  essential  raison  d'&tre  of  the 
instrument. 

8th.  The  forecasting  of  all  possible  eventualities  that  would 
materially  affect  the  agreement,  and  a  full  statement  of  everything 
that  is  to  be  done  in  case  of  each  eventuality. 


64 


SPECIFICATIONS    AND    CONTRACTS. 


Contract  Forms 


Introduction 


9th.  Penalties  for  failure  to  comply  with  the  various  terms  of 
the  agreement. 

10th.     Provision  for  possible  cancellation  of  contract. 

llth.  Provision  for  settlement  of  all  business  relations  covered 
by  the  contract  or  resulting  therefrom  in  case  of  cancellation,  taking 
into  account  all  possible  important  eventualities. 

12th.  Mention  of  the  place  where  the  agreement  is  drawn  or  of 
the  place  where  it  is  to  be  put  in  force,  so  as  to  show  the  state  under 
the  laws  of  which  the  validity  of  the  contract  is  to  be  determined, 
should  suit  be  necessary  to  enforce  it. 

13th.    Methods  of  payments,  if  any  are  to  be  made. 

14th.  Provision  for  extra  compensation  and  the  limitations 
connected  therewith. 

15th.    Provision  for  possible  changes  in  contract. 

16th.    Provision  for  transfer  of  the  contract  or  for  subletting. 

17th.     Provision  for  settlement  of   disputes. 

18th.  Provision  for  satisfactory  and  sufficient  bond,  if  any 
be  needed. 

19th.  Provision  for  defense  of  lawsuits,  if  such  provision  be 
necessary. 

20th.  Definition  of  names  used  in  contract,  such  as  "Engineer,"" 
"Company,"  "Contractor,"  or  "Trustee." 

21st.     Dating  of  contract. 

22d.  Proper  signatures  with  the  necessary  seals,  if  the  latter  be 
required. 

23d.  Witnesses  to  the  signatures,  or  execution  before  a  notary 
public. 

I  shall  now  take  up  and  discuss  in  the  order  of  their  enumera- 
tion each  of  these  essentials  to  a  properly  drawn  contract. 

1st.  The  styles  of  opening  clause  for  contracts  are  both  numer- 
ous and  varied,  and  it  is  difficult  to  say  which  is  the  best.  Each 
writer  naturally  will  have  one  favorite  style  and  will  adhere  to  it 
whenever  possible.  Mine  for  many  years  has  been  as  follows:  (In 
order  to  make  it  more  readable  I  shall  fill  out  the  spaces  with  some 
assumed  names  and  a  date.) 

"MEMORANDUM  OF  AGREEMENT,  made  and  signed  this 
eleventh  day  of  February,  1905,  by  and  between  the  Kansas  City 
Bridge  and  Terminal  Railway  Company,  a  corporation  of  the  State 
of  Missouri,  the  party  of  the  first  part,  and  sometimes  termed  in  this 
agreement  and  in  the  specifications  the  "Company,"  and  The  Western 
Contracting  Company,  a  corporation  of  the  State  of  Kansas,  the 


SPECIFICATIONS    AND    CONTRACTS.  65 

party  of  the  second  part,  and  sometimes  termed  in  this  agreement 
and  in  the  specifications  the  'Contractor.'  " 

Wait  recommends  the  two  following  forms  of  introduction: 

"This  agreement,  made  and  entered  into  this  eleventh  day  of 
February,  in  the  year  of  1905,  by  and  between,  etc.,  etc." 

"Articles  of  Agreement,  made  and  entered  into  between  The 
Kansas  City  Bridge  and  Terminal  Railway  Company,  a  corporation, 
etc.,  etc.,  and  The  Western  Contracting  Company,  a  corporation, 
etc.,  etc.,  on  this  eleventh  day  of  February,  1905." 

After  the  introductory  clause  comes  the  preamble,  and  imme-  Attestation 
diately  after  it  I  insert  in  capital  letters  "NOW  THIS  AGREEMENT 
WITNESSETH,"  and  follow  with  consecutively  numbered  clauses 
that  embody  all  the  terms  and  conditions  of  the  contract,  then  close 
with  provision  for  the  signatures  and  seals  of  the  contracting  parties 
and  witnesses  to  these  signatures. 

2d.  In  describing  the  various  parties  to  an  agreement  care  parties  Described 
should  be  taken  to  make  the  description  full  and  convincing  in 
order  that  there  shall  be  no  possible  mistake  concerning  the  identity 
of  each  party.  This  is  effected  in  the  case  of  an  individual  by 
stating  his  occupation  and  place  of  residence,  in  the  case  of  a  firm 
by  naming  it  fully,  mentioning  its  place  of  business,  and  describing 
the  kind  of  partnership,  and  in  case  of  a  company  by  giving  its 
legal  title  and  the  name  of  the  state  or  country  where  it  was  incor- 
porated. In  case  of  a  partnership  it  is  sometimes  well  to  specify 
whether  it  is  general  or  special  in  respect  to  the  work  covered  in 
the  contract. 

While  most  contracts  are   drawn  between   but   two   parties,  it  Number  of  Parties 
sometimes  occurs  that  an  agreement  will  involve  three  or  even  more. 
Such  a  contract  is  much  more  complicated  and  difficult  to  draft  than 
one  between  two  parties  only. 

Each  party  should  be  designated  in  the  instrument  by  his  special  Persona  Descriptio 
number,  as  the  party  of  the  first  part  or  the  party  of  the  second  part; 
and  in  addition  it  is  well  to  give  each  another  designation,  such  as 
"Contractor,"  "Company,"  "Owner,"  "Engineer,"  "Promoter," 
"Board,"  "City,"  "Incorporator,"  or  "Trustee"  in  order  to  avoid  the 
use  of  too  many  words  throughout  the  document,  as  would  be  the 
case  were  he  always  referred  to  as  the  party  of  the  first  or  second 
part.  In  order  to  make  assurance  doubly  sure  it  is  well  in  some 
cases  to  define  the  terms  "Contractor,"  "Company,"  "Engineer," 
"Promoter,"  etc.,  at  the  end  as  well  as  at  the  beginning  of  the  docu- 
ment. In  any  case  these  explanatory  clauses  should  be  placed  at 


66 


SPECIFICATIONS    AND    CONTRACTS. 


Precedence 


Authority 


Ultra   Vires 


Membership  Organi- 
zation 


the  beginning  or  the  end  of  the  specifications,  because  the  latter  are 
often  used  without  the  contract  being  attached. 

There  is  no  strict  rule  as  to  the  order  in  which  the  several 
parties  shall  be  placed,  but  it  is  customary  to  make  the  one  who 
pays  the  money  the  party  of  the  first  part.  In  case  of  employer  and 
employee  the  employer  should  come  first.  In  other  cases  it  is  a 
good  rule  to  put  the  most  important  party  first  and  the  others  as 
nearly  as  may  be  in  the  order  of  the  importance  of  their  relation  to 
the  enterprise  or  object  matter  of  the  agreement. 

There  is  a  consideration  of  primary  importance  in  contract 
writing  that  is  sometimes  overlooked — viz.,  whether  the  parties  to 
the  agreement  are  legally  entitled  to  enter  into  contract.  For 
instance,  in  the  case  of  a  company,  the  president  or  general  manager, 
or  perhaps  either,  can  sometimes  legally  contract  in  the  company's 
name,  but  sometimes  he  cannot,  in  which  case,  if  haste  be  essential,  it 
would  be  proper  to  have  him  enter  into  and  sign  the  contract  and 
afterward  have  it  formally  approved  at  a  meeting  of  the  board  of 
directors.  A  properly  certified  copy  of  the  board's  approval  should 
subsequently  be  attached  to  the  contract.  Access  to  its  charter  and 
by-laws  is  generally  necessary  to  determine  who  has  authority  to 
enter  into  and  sign  contracts  for  a  company. 

In  contracting  no  corporation  can  exceed  the  limit  of  its  powers 
as  given  by  its  charter.  If  it  attempts  to  do  so,  its  act  will  be  ultra 
vires  and  without  effect;  consequently  it  behooves  one  in  writing 
a  contract  with  a  corporation  first  to  study  well  its  charter,  articles 
of  incorporation,  and  by-laws. 

Contracting  with  unincorporated  organizations  as  parties,  such 
as  associations,  clubs,  societies,  or  congregations,  is  a  precarious 
business;  nevertheless,  it  often  has  to  be  done.  In  order  to  insure 
the  payment  of  money  obligations  by  such  parties  a  sufficient  sum 
should  be  deposited  in  advance  in  the  hands  of  a  reputable  trustee 
with  instructions  to  pay  it  to  the  proper  party  or  parties  as  soon  as 
the  obligations  covered  in  the  contract  have  been  met;  otherwise 
the  other  contracting  party  is  liable  to  lose  his  entire  consideration, 
because  it  is  very  difficult  to  hold  legally  an  organization  that  has 
no  legal  existence,  even  if  all  the  members  thereof  be  individually 
liable.  Here  again  I  speak  from  sad  experience,  for  at  the  outset  of 
my  consulting  practice  I  lost  what  I  considered  then  a  large  fee  by 
dealing  with  a  committee  of  public-spirited  citizens,  who  were  not 
honest  enough  to  pay  their  just  debts  after  the  proposed  enterprise 
had  failed.  Even  the  law  did  not  enable  me  to  collect  the  bill,  as 


SPECIFICATIONS    AND    CONTRACTS.  67 

my  lawyers  did  not  present  the  case  to  the   court  in  the  proper 
manner. 

Again,  any  person  under  twenty-one  years  of  age,  termed  in  law  Infants 
an  infant,  who  enters  into  a  contract,  has  the  privilege  of  repudiating 
it  after  arriving  at  the  age  of  maturity,  in  case  that  it  does  not 
redound  to  his  advantage;  consequently  it  behooves  the  writer  of  a 
contract  to  make  sure  in  all  doubtful  cases  that  the  contracting 
parties  are  of  age.  In  engineering  contracts,  however,  this  ques- 
tion is  seldom  likely  to  arise,  because  very  young  men  are  not  often 
concerned  in  a  prominent  way  with  important  enterprises. 

Similarly,  imbeciles,  inebriates,  and  lunatics  are  incompetent,  Parties  incompetent 
and  contracts  made  by  them  are  legally  voidable  at  their  option. 
While  it  is  highly  improbable  that  either  an  imbecile  or  a  lunatic 
would  ever  be  made  a  party  to  an  engineering  contract,  it  is  not 
impossible  that  a  man  chronically  addicted  to  the  overuse  of  liquor 
might  be  so  concerned.  Such  a  man  might  plead  that  he  was  under 
the  influence  of  drink  when  he  signed  the  document  and  thus  possibly 
effect  his  release  from  its  obligations;  consequently  the  writer  of 
an  engineering  contract  should  assure  himself  of  the  temperate 
character  or  at  least  of  the  sober  condition  of  the  parties  thereto. 

A  married  woman  in  some  states  cannot  contract,  sue,  or  be  Married  Woman 
sued  in  her  own  name.  While  it  is  uncommon  for  women  to  be 
engaged  in  enterprises  involving  engineering,  it  is  by  no  means 
impossible,  as  I  have  learned  from  a  hard  lesson;  for  in  the  case  of 
a  contract  for  the  engineering  of  a  large  and  novel  enterprise  that 
I  entered  into  with  a  certain  man,  it  transpired  that  he  was  acting 
as  agent  for  a  married  woman.  Before  our  work  was  finished  the 
man  died,  and  the  woman  gave  us  notice  in  writing  that  she  would 
assume  his  share  of  the  contract,  and  instructed  us  to  finish  our 
work.  This  we  did,  and  she  paid  us  one-half  of  our  total  fee;  but 
before  the  date  specified  in  the  contract  for  the  payment  of  the 
second  half,  the  bottom  dropped  out  of  the  scheme,  and  the  lady  then 
refused  to  make  any  further  payment.  She  did  not  plead  her  mar- 
ried state  as  a  justification  for  her  refusal,  but  we  knew  what  we 
might  expect  in  a  legal  contest  over  the  question,  consequently  we 
entered  the  balance  on  the  wrong  side  of  our  ledger  in  the  "Profit 
and  Loss"  account. 

In  case  of  war  a  contract  entered   into  between  parties  who  War 
are  subjects  or  citizens  of  the  conflicting  countries  is  illegal,  and  if 
war  be  declared  subsequent  to  the  signing  of  the  contract,  its  obli- 
gations cannot  be  enforced  by  law  until  after  the  war  has  ceased. 


68 


SPECIFICATIONS    AND    CONTRACTS. 


Agency 


Government 
Party 


Execution 


Preamble 


As  engineers  are  often  interested  in  projects  in  foreign  countries, 
this  is  a  matter  that  needs  to  be  borne  in  mind  when  preparing  the 
contracts  for  such  enterprises. 

When  a  contract  is  entered  into  by  an  agent,  care  should  be 
taken  to  make  this  relationship  both  clear  and  legal  in  the  docu- 
ment by  stating  the  name  of  the  owner  or  corporation  and  following 
it  with  the  words  "acting  by  and  through  Mr.  X,  Agent,  Attorney, 
Engineer,  President,  or  Treasurer  (as  the  case  may  be),  by  virtue 
of  the  authority  vested  in  him  through  power  of  attorney  of  the 

(here  name  the  individual  or  company)    dated  the  day  of 

19 — ,  a  copy  of  which  is  hereto  annexed,"  or  in  some  similar 

and  equally  explicit  manner.  In  this  way  the  name  of  the  real  prin- 
cipal is  made  certain,  the  authority  of  the  agent  is  preserved,  and 
the  possible  liability  of  the  agent  as  the  principal  is  averted.  It 
must  be  remembered  that  no  claims  or  obligations  against  a  principal 
are  created  by  a  contract  entered  into  by  an  agent  who  acts  without 
proper  authority,  unless  the  contract  be  afterward  confirmed  directly 
or  indirectly  by  the  principal. 

Much  engineering  work  is  being  done  and  is  to  be  done  in  the 
future  by  contract  with  the  United  States  Government.  In  making 
such  contracts  it  is  important  to  note  that  although  the  Government 
may  enter  suit  on  its  contracts  for  their  enforcement,  it  cannot, 
without  its  own  consent,  be  sued  for  non-compliance  therewith. 
Instances  are  not  unknown  of  repudiation  of  contracts  by  govern- 
ments. Furthermore,  public  officers  cannot  be  held  personally 
liable  for  contracts  signed  by  them  in  their  official  capacity. 

The  names  of  the  parties  in  the  body  of  a  contract  should  cor- 
respond exactly  with  the  signatures  and  seals  at  the  end,  for  a 
variation  might  prove  fatal  to  the  validity  of  the  document. 

3d.  The  preamble  is  a  most  important  portion  of  any  contract. 
It  should  explain  fully  all  the  whys  and  wherefores  of  the  agree- 
ment and  its  raison  d'etre.  A  thorough  explanation  of  these  would 
often  render  clear  the  intent  of  a  clause  in  the  body  of  the  instru- 
ment that  is  otherwise  ambiguous. 

Once  more  I  am  speaking  from  experience,  for  in  an  impor- 
tant but  hurriedly  prepared  contract  one  of  the  clauses  was  not 
drawn  with  sufficient  clearness,  and,  in  consequence,  one  of  the 
parties  to  the  agreement  tried  to  take  an  unfair  advantage  of  it. 
Had  the  preamble  explained  carefully  and  in  detail  the  ultimate 
object  of  the  contract  and  the  various  steps  necessary  for  its  accom- 


SPECIFICATIONS    AND    CONTRACTS.  69 

plishment,  the  said  party  would  not  have  been  able  to  make  the 
claim  he  did. 

You  will  be  better  able  to  judge  of  the  importance  of  the  pre- 
amble and  to  understand  its  scope  after  hearing  read  the  specimen 
contracts  that  are  to  conclude  this  lecture. 

4th.  Every  contract  should  contain  a  statement  of  when  or  conditions  Precedent 
under  what  conditions  it  is  to  become  operative.  The  date  may  be 
some  particular  day  of  month  and  year  or  immediately  after,  or 
some  definite  time  subsequent  to,  some  act  or  occurrence,  such,  for 
instance,  as  the  giving  of  written  notice,  or  the  deposit  of  a  certain 
amount  of  money  in  a  certain  place,  or  the  completion  of  a  certain 
piece  of  work,  or  the  arrival  of  a  railroad  at  a  certain  point.  What- 
ever the  "condition  precedent"  may  be,  it  should  be  made  clear  in 
the  document  beyond  the  peradventure  of  a  doubt. 

5th.  Too  often  in  contracts  nothing  is  said  concerning  the  Duration 
duration  of  the  agreement  or  of  how  it  is  to  be  drawn  to  a  close. 
In  some  cases  it  would  be  impracticable  thus  to  limit  the  life  of  the 
contract;  but  in  others  it  is  not  only  practicable,  but  also  advisable, 
and  sometimes  it  is  imperative,  especially  where  a  bond  for  proper 
completion  of  work  is  involved. 

6th.     The  statement  of  what  each  party  to  the  contract  binds   Legal  Representa- 
tives 
himself,    his    executors,    administrators,    successors,    or   assigns,    as 

the  case  may  be,  to  do  or  to  refrain  from  doing,  should  be  thorough 
and  complete  in  every  detail.  The  importance  of  this  is  self- 
evident,  nevertheless  it  is  a  point  that  is  not  always  given  proper 
attention  in  contract  writing. 

In  all  contracts  between  corporations  or  between  a  corporation 
and  an  individual,  the  promises  to  perform  should  be  made  binding 
upon  the  successors  or  assigns  of  each  corporation,  although  it  is 
probable  that  the  law  would  enforce  this  even  if  the  stipulation 
were  omitted. 

In  contracts  where  an  individual  is  a  party  to  the  agreement  it    Contracts  for  Per- 
sonal Service 
is  best  to  bind  not  only  himself,  but  also  his  executors  or  assigns, 

unless,  perchance,  the  obligation  be  of  such  a  nature  as  to  be  non- 
transferable,  as  for  instance,  the  performance  of  personal  duties 
or  services  of  an  expert  nature  or  involving  special  skill.  Thus 
an  engineer's  services  are  not  transferable,  unless  some  special 
provision  be  made  and  agreed  to  by  both  parties  that,  in  case  of  his 
death  or  inability  for  good  and  sufficient  reason  to  finish  his  work, 
his  contract  is  to  be  assumed  by  some  other  engineer,  either  named 
or  to  be  determined  afterward  in  some  specific  way.  But  the  death 


70 


SPECIFICATIONS    AND    CONTRACTS. 


of  one  member  of  a  firm  of  engineers  will  not  cancel  an  agreement; 
for  as  long  as  one  of  the  original  members  of  the  firm  remains  in 
charge  the  contract  will  hold.  In  other  words,  it  would  require  the 
death  or  incapacity  of  all  the  original  members  of  the  firm  to 
abrogate  the  contract,  unless  special  provision  to  the  contrary  exist 
in  the  written  agreement. 

Construction    contracts    are    generally   assignable,    unless   they 
contain  provision  to  the  contrary. 

Consideration  7th.     The  consideration  which  each  party  to  an  agreement  is 

to  give  and  is  to  receive  should  be  clearly  and  fully  stated  in  the 
document,  otherwise  unsealed  contracts  are  liable  to  be  held  value- 
less and  void  in  law.  Moreover,  the  consideration  must  be  real, 
substantial,  and  adequate.  Some  lawyers  make  a  practice  in  many 
cases  of  specifying  a  consideration  of  one  dollar,  and  they  even  try 
to  pass  that  dollar  around  among  the  several  parties  to  the  agree- 
ment by  having  each  party  make  nominally  that  payment  to  each 
of  the  other  parties  so  as  to  show  that  each  receives  a  valuable  (?) 
consideration.  In  my  opinion,  such  a  practice  is  mere  humbug  and 
unworthy  of  adoption  by  any  man  pretending  to  scientific  attain- 
ments in  his  profession,  no  matter  whether  that  profession  be  law 
or  engineering.  Its  adoption,  it  seems  to  me,  is  prima  facie  evidence 
of  weakness  in  the  document  and  a  confession  by  its  writer  that  he 
has  failed  to  make  evident  the  true  consideration  that  each  party  is 
to  receive  and  the  real  reason  for  each  party's  entering  into  the 
agreement. 

Inad-  There  may  be  some  excuse  for  passing  the  dollar  in  case  of  a 

parent  deeding  property  to  his  child,  where  the  true  consideration 
is  love  and  affection;  but  a  dollar  does  not  constitute  a  real  con- 
sideration— it  would  be  insufficient  usually  to  pay  the  cost  of  type- 
writing the  document;  hence  its  employment  is  a  fiction  aad  a  farce. 
8th.  No  portion  of  the  work  of  contract  writing  requires  greater 
experience  and  ability  than  the  forecasting  of  all  possible  eventuali- 
ties that  would  materially  affect  the  agreement  and  the  proper  pro- 
vision for  what  is  to  be  done  in  the  case  of  each  eventuality.  All 
contracts  are  more  or  less  faulty  in  this  particular,  for  it  would 
require  omniscience  to  forecast  all  future  happenings;  nevertheless, 
in  preparing  an  important  contract  one  should  endeavor  to  foresee 
and  provide  for  all  possibilities  and  probabilities.  The  lawyer  or 
engineer  who  makes  a  practice  of  giving  this  important  matter  full 
consideration  in  every  contract  that  he  writes  will  soon  find  himself 
in  demand  by  capitalists  to  aid  them  in  making  their  investments 


Consideration 
equate 


Eventualities 


SPECIFICATIONS    AND    CONTRACTS.  71 

and  in  consummating  their  enterprises.  The  succeeding  examples 
of  contracts  will  illustrate  what  I  mean  by  the  forecasting  of  eventu- 
alities and  providing  for  them. 

9th.  The  matter  of  penalties  is  one  that  has  to  be  handled  with  Penalties 
gloves,  for  the  law  is  very  jealous  of  its  rights  and  prerogatives,  and 
deems  that  it  alone  is  authorized  to  specify  and  enforce  a  penalty, 
which  it  interprets  as  a  punishment  for  failure  to  perform  or  comply 
with  the  terms  of  an  agreement.  On  this  account  it  is  better  not  to 
use  the  term  "penalty"  in  any  contract,  but  to  employ  instead  that 
of  "liquidated  damages."  In  my  practice  I  have  a  clause  in  con- 
struction specifications  that  reads  as  follows: 

"For  each  day  of  delay  beyond  the  date  set  in  the  contract  for 
completing  the  entire  work  herein  outlined,  all  in  accordance  with 
the  plans,  specifications,  and  directions  of  the  Engineer,  the  Com- 
pany shall  withhold  permanently  from  the  Contractor's  total  com- 
pensation the  sum  of  dollars;  and  the  amount  thus  with- 
held shall  not  be  considered  as  a  penalty,  but  as  liquidated  damages, 
fixed  and  agreed  to  in  advance  by  the  contracting  parties  as  a  proper 
compensation  to  the  Company  for  the  loss  caused  it  by  such  delay." 

Liquidated  damages  are  but  seldom  enforced,  owing  mainly  to  Liquidated  Damages 
the  characteristic  good  nature  of  engineers,1  for  they  object  to  taking 
advantage  of  a  contractor  who  has  worked  faithfully  but  has  been 
unfortunate.  Again,  the  fact  that  the  sympathy  of  jurors  is  gener- 
ally with  the  workingman  and  against  corporations  is  a  reason  why 
disputes  involving  the  retention  of  money  to  compensate  for  delays 
are  generally  settled  out  of  court. 

10th  and  llth.  In  most  contracts  for  construction  and  in  ^Jgjjf011  or  Can" 
some  other  types  of  contract  there  is  no  need  to  provide  for .  a 
possible  abrogation  of  the  agreement,  because  the  completion  of 
the  work  involved  is  a  natural  cancellation;  but  in  some  other  types, 
such,  for  instance,  as  partnership  contracts  that  continue  indefi- 
nitely, full  detailed  provision  should  be  made  for  annulment  at  any 
time.  Great  care  should  be  exercised  to  describe  fully  how  ai! 
current  business  matters  are  to  be  closed  and  what  compensation  is 
to  be  paid  to  the  other  party  or  parties  by  the  party  who  desires 
the  said  cancellation.  To  do  this  in  a  satisfactory  manner  will 
require  business  knowledge  and  ability  of  the  highest  order. 

12th.     It  is  quite  important  in  many  contracts  to  state  where   Lex  Loci 
the  instrument  was  executed  and  where  it  is  to  be  put  in  force, 
notwithstanding  the  fact  that  the  residence  of  each  party  in  case 


1  And  the  aversion  of  courts  and  juries  to  their  enforcement. 


72 


SPECIFICATIONS    AND    CONTRACTS. 


Payments 


Contracts   for   Pro- 
fessional Service 


Extras  to  be  Ordered 
in  Writing. 


Alterations 


of  individuals  or  the  state  of  organization  in  case  of  corporations 
has  been  described  in  the  introductory  clause  of  the  document.  The 
laws  governing  a  contract  may  be  determined  by  the  place  where 
the  contract  was  made  or  by  that  in  which  it  is  performed.  Wait 
treats  this  question  very  thoroughly  on  pages  49  to  51  of  his 
Engineering  and  Architectural  Jurisprudence. 

13th.  Methods  of  making  payments  under  construction  con- 
tracts are  generally  covered  in  the  specifications,  where,  in  my 
opinion,  they  properly  belong,  although  I  have  on  several  occasions 
been  adversely  criticized  for  not  putting  a  payment  clause  in  the 
contract  proper.  In  all  other  types  of  contract  in  which  payments 
of  money  are  involved,  full  provision  should  be  arranged  for  the 
exact  manner  in  which  all  payments,  both  partial  and  final,  are  to 
be  made.  This  remark  applies  with  special  force  to  contracts 
involving  engineering  fees;  for  in  these,  if  payments  on  account  are 
not  arranged  for,  there  is  a  chance  that  the  engineers  will  receive 
no  compensation  at  all  until  after  the  completion  of  their  work,  and 
this  might  be  delayed  for  an  indefinite  period.  Our  usual  practice 
is  to  ask  one-half  of  our  fee  upon  the  completion  of  the  plans  and 
specifications  and  the  other  half-  in  monthly  payments  proportionate 
to  the  amount  of  contract  work  done  on  the  construction,  so  that 
when  the  latter  is  finished  we  shall  have  been  paid  in  full.  We 
have  learned  to  provide  also  that  we  are  to  be  compensated  properly 
for  all  extra  expense  to  us  due  to  failure  to  complete  the  work  in 
the  time  specified.  It  has  cost  us  many  thousands  of  dollars  to 
learn  this  lesson,  consequently  the  hint  that  I  am  giving  you  ought 
to  be  valuable. 

14th.  In  construction  contracts  the  subject  of  extra  payments 
also  belongs  in  the  specifications,  although  in  many  cases  it  is 
covered  in  the  contract  proper.  Our  standard  clause  for  this  item 
reads  thus: 

"No  extras  will  be  allowed,  unless  they  be  ordered  in  writing 
by  the  Engineer.  For  extras  so  allowed  the  Contractor  will  be  paid 
the  actual  cost  to  him,  plus  ten  (10)  per  cent,  for  profit.  Satisfac- 
tory vouchers  will  be  required  from  the  Contractor  for  all  extra 
labor  and  materials." 

15th.  It  is  a  wise  precaution  to  provide  for  making  changes  in 
every  important  contract.  Our  standard  clause  for  this  item  is  as 
follows: 

"No  change  or  alteration  shall  be  made  in  the  terms  or  condi- 
tions of  this  agreement  without  the  consent  of  both  parties  hereto 


SPECIFICATIONS    AND    CONTRACTS.  73 

in  writing;  and  no  claim  shall  be  made  or  considered  for  any  extra 
work,  unless  the  same  shall  be  authorized  and  directed  in  writing 
toy  the  engineer." 

16th.    In  construction  contracts  there  should  always  be  a  clause  Subletting   Forbid- 
den 
to   govern    assigning   the   contract   and   subletting   the   work.     Our 

standard  clause  for  this  reads  thus: 

"The  party  of  the  second  part  hereby  agrees  that  it  will  not 
assign  or  sublet  the  work  covered  in  this  contract,  or  any  portion 
of  it,  without  the  written  consent  of  the  party  of  the  first  part,  but 
will  keep  the  same  within  its  control." 

17th.  In  respect  to  provision  for  settlement  of  disputes  Engineer's  Decision 
•engineers  are  somewhat  at  variance.  Some  think  that  the  engineer 
should  be  the  sole  arbiter,  but  I  do  not  believe  that  such  an  arrange- 
ment is  just,  savoring,  as  it  does,  altogether  too  much  of  autocratic 
rule.  I  am  a  firm  believer  in  arbitration  for  the  settlement  of  all 
disputes  on  important  matters,  and  it  has  for  many  years  been  my 
custom  to  provide  in  all  construction  contracts  for  such  a  method 
of  settlement.  Our  standard  clause  for  this  matter  is  as  follows: 

"The  decision  of  the  Engineer  shall  control  as  to  the  interpreta- 
tion of  drawings  and  specifications  during  the  execution  of  the  work 
under  them;  but  if  either  party  shall  consider  itself  aggrieved  by 
any  decision,  it  may  require  the  dispute  to  be  finally  and  conclu-  Arbitration 
sively  settled  by  the  decision  of  three  arbitrators,  the  first  to  be 
appointed  by  the  party  of  the  first  part,  the  second  by  the  party  of 
the  second  part,  and  the  third  by  the  two  arbitrators  thus  chosen. 
In  case  that  the  two  first  chosen  fail  to  agree  upon  a  third,  the  latter 

shall  be  appointed  by   

By  the  decision  of  these  three  arbitrators  or  that  of  a  majority  of 
them,  both  parties  to  this  agreement  shall  be  finally  bound."  The 
person  chosen  to  appoint  the  third  arbitrator  should  be  some  promi- 
nent official,  such  as  the  judge  of  a  certain  court,  the  mayor  of  a 
certain  city,  or  the  governor  of  a  certain  state. 

It  is  seldom  that  an  arbitration  clause  in  a  contract  is  utilized, 
because  engineers  as  a  rule  are  reasonable.  Only  once  in  my  thirty 
years  of  practice  has  it  been  appealed  to.  The  subject  of  dispute  in 
that  case  was  some  lumber  very  properly  rejected  by  my  inspector 
as  unfit  for  use.  Unfortunately,  the  result  of  the  arbitration  was 
adverse  to  my  decision,  owing  to  a  too  friendly  understanding 
between  the  officers  of  the  Company  and  the  Contractor. 

Notwithstanding  the  fact  that  the  contract  reads  that  "By  the    Appeal  from  Award 
•decision  of  these  three  arbitrators,  or  by  that  of  a  majority  of  them, 


74 


SPECIFICATIONS    AND    CONTRACTS. 


both  parties  to  this  agreement  shall  be  finally  bound,"  the  law  has 
decided  that  the  losing  party  has  still  a  right  to  appeal  to  the  courts; 
consequently,  this  clause  of  our  form  of  contract  is  not  binding. 
Although  I  have  known  this  for  years,  I  have  made  no  change  in 
the  clause,  for  the  reason  that  at  least  nine  contractors  out  of  ten 
prefer  arbitration  to  the  delays,  uncertainties,  and  expense  that  are 
inseparable  from  legal  litigation,  and  I  have  never  heard  of  a  case- 
in which  the  loser  by  arbitration  appealed  to  the  courts.  It  would 
simplify  matters  if  immediately  after  an  arbitration  is  agreed  upon 
each  party  concerned  were  to  give  to  the  other  a  bond  guaranteeing 
that  he  will  abide  by  the  decision  of  the  arbitrators. 

Bonds  or  Surety  18th.     The  bond  question  is  a  prominent  feature  of  any  construc- 

tion contract  and  occasionally  is  important  in  other  types  of  contract. 
My  firm  has  finally  come  to  the  conclusion  that  a  good  Surety  Com- 
pany bond  is  the  only  kind  that  we  shall  either  ask  for  or  accept  in 
future,  for  no  other  kind  is  so  satisfactory  to  the  Company  or  is 
obtained  with  so  little  difficulty  by  the  Contractor.  All  personal 
bonds  are  obtained  by  favor  and  they  are  generally  very  unsatisfac- 
tory, for  the  solvency  of  the  sureties  is  difficult  to  prove,  and  to 
enforce  payment  is  still  more  difficult.  Many  years  ago  I  had  my 
first  and  last  experience  with  a  personal  bond.  It  was  when  building 
my  residence  that  I  accepted  from  the  contractor  a  joint  bond  signed 
by  three  or  four  persons,  among  them  a  good  friend  of  mine.  This 
bond  was  accepted  by  my  lawyers;  nevertheless,  later  on  when  the 
contractor  threw  up  the  work  I  found  that  the  only  responsible  man 
on  the  paper  was  my  friend.  As  I  could  not  press  him,  I  waived 
the  matter,  and  in  consequence  was  materially  out  of  pocket. 

Sureties  Released  There  is  considerable  humbug  in  connection  with  sureties  to 

agreements,  for  a  slight  change  in  contract,  plans,  or  specifications 
is  often  sufficient  to  render  the  bond  null  and  void.  If  any  one 
doubt  this  statement,  let  him  read  what  Wait  says  on  pages  13  to  17 
of  his  Engineering  and  Architectural  Jurisprudence.  In  my  opinion 
the  only  way  to  protect  the  Company  is  to  insist  upon  having  a 
oond  that  will  permit  of  all  necessary  changes  in  plans  and  specifica- 
tions without  releasing  the  surety,  and  even  such  a  bond  might  be 
voided  by  the  law's  declaring  it  illegal  because  it  departs  from 
current  practice.1 

Law  and  Equity  There  are  some  very  strange  things  about  the  law.     On  two  or 

three  occasions  I  have  been  provoked  to  make  the  statement  that 
"laws  are  made  to  protect  rogues  against  honest  men,"  and  truly  it 


Decisions. 


SPECIFICATIONS    AND    CONTRACTS.  75 

does  seem  sometimes  as  if  such  were  the  case.  Law  and  equity  are 
two  entirely  different  things.  The  less  that  engineers  have  to  do 
with  the  former  and  the  more  they  employ  the  latter,  the  better  it 
will  be  for  all  concerned. 

In  adjusting  disputes  I  am  a  firm  believer  in  the  principle  of  Compromised  Claims 
compromise,  or,  to  put  it  in  more  homely  words,  in  that  of  "give  and 
take."    It  is  nearly  always  practicable  to  bring  two  disputing  parties 
to  terms  by  suggesting  a  reasonable  compromise. 

19th.  If,  according  to  a  contract,  the  Contractor  is  to  indemnify  indemnity  for  Negli- 
the  Company  against  all  liability  or  damages  on  account  of  acci- 
dents, it  is  only  -fair  that  the  former  should  be  given  the  privilege 
of  assuming  the  sole  defense  of  all  lawsuits  arising  from  such  claims. 
You  will  see  later  how  our  standard  form  of  contract  covers  this 
point. 

20th.  The  manner  of  defining  by  special  clauses  names  used 
in  the  contract,  such  as  "Engineer,"  "Company,"  etc.,  will  be  seen 
later  in  the  various  appended  examples  of  contracts. 

21st.    A  contract  can  be  dated  either  in  the  opening  or  in  the  Contract  Date 
final  clause,  or  in  both.     In  the  latter  case  it  is  better  not  to  repeat 
the  date,  but  to  insert  the  sentence  "Dated  the  day,  month,  and  year 
first  herein  written." 

22d.  It  is  important  that  the  signatures  coincide  exactly  with  Signature  and  Seal 
the  names  of  the  parties  as  given  in  the  opening  clause  of  the  agree- 
ment, and  that  proper  seals  are  attached  when  they  are  needed.  If  a 
party  to  a  contract  be  a  corporation,  its  corporate  seal  should  be 
used,  but  in  the  case  of  an  individual  almost  any  kind  of  seal  will 
suffice — either  a  wafer  or  the  word  "seal"  with  a  scroll  drawn 
around  it  with  pen  and  ink  being  commonly  used.  In  the  latter 
case  it  is  better  to  write  in  small  letters  the  initials  of  the  signer 
over  the  word  "seal." 

Let  me  here  call  your  attention  to  an  important  and  funda-  Specialties 
mental  difference  between  contracts  with  and  without  seals.  The 
former  do  not  need  to  have  a  consideration  mentioned  in  them  in 
order  to  make  them  valid,  while  the  latter  do  require  such  mention. 
In  former  times  there  was  far  greater  difference  in  the  importance 
of  sealed  and  parole  (or  unsealed)  contracts  than  there  is  to-day; 
for  then  a  sealed  contract  could  not  be  modified  without  taking  many 
formal  legal  steps,  while  to-day  it  can  be  changed  quite  readily  by  a 
short  supplementary  contract,  provided  there  be  a  proper  considera- 
tion mentioned  therein  for  the  making  of  the  change. 

23d.    Where  the  party  to  a  contract  is  a  corporation,  the  proper    Witnesses 
witness  to  the  Company's  signature  is  the  Secretary  of  the  Company, 

OF  THE  \ 


I   UNIVERSITY   ) 

1  OP  / 


76 


SPECIFICATIONS    AND    CONTRACTS. 


Acknowledgments 


Contract   Form 


Introduction  and 
Parties 


who  should  use  its  corporate  seal  for  attesting  the  document,  but 
in  case  the  party  is  an  individual  any  witness  will  suffice. 

The  best  possible  witness  to  signatures  is  a  properly  authorized 
notary  public,  because  if  any  doubt  be  expressed  concerning  the 
authenticity  of  the  said  signatures,  all  that  is  necessary  is  to  prove 
the  notary's  authority,  which  is  a  matter  of  public  record,  while 
for  all  other  witnesses  it  is  obligatory  to  search  for  them  and  either 
produce  them  in  person  or  prove  that  it  is  impracticable  to  do  so  on 
account  of  death  or  departure  from  the  country;  and  in  this  case  it 
is  generally  required  that  there  be  brought  forward  reliable  parties 
who  will  swear  that  the  witnesses'  signatures  are  authentic. 

In  the  hope  that  it  may  prove  useful  to  you  and  to  the  readers 
of  the  volume  that  later  on  will  contain  this  lecture,  I  herewith 
reproduce  the  standard  "Form  for  Contract"  of  Waddell  &  Harring- 
ton for  appending  to  construction  specifications. 

MEMORANDUM  OF  AGREEMENT,  Made  and  signed  this 

day  of 19 ,  by  and  between  the 

the  party  of  the  first 

part,  and  sometimes  termed  in  this  agreement  and  in  the  specifica- 
tions the  "Company,"  and  


Preambles 


the  party  of  the  second  part,  and  sometimes  termed  in  this  agree- 
ment and  in  the  specifications  the  "Contractor." 
WHEREAS, 


Undertaking  and 
Consideration 


NOW  THIS  AGREEMENT  WITNESSETH: 

First. — The  party  of  the  second  part,  for  and  in  consideration 
of  certain  payments  to  be  made  to  it  as  hereinafter  specified,  will 


Time  of  Essence 


all  in  accordance  with  the  plans  and  specifications  hereunto 
annexed  and  made  a  part  hereof,  and  will  fully  finish  and  complete 

the  same  by unless,  in 

the  opinion  of  the  Engineer,  the  party  of  the  second  part  be  delayed 
or  prevented  by  circumstances  that  are  absolutely  beyond  its 
control. 

Second. — The  party  of  the  second  part  shall  begin  the  work  of 
construction  as  soon  as  practicable  after  the  signing  of  the  con- 
tract, and  shall  push  the  same  to  completion  as  rapidly  as  possible 
and  within  the  time  limit  or  limits  set  in  the  accompanying 
specifications. 


SPECIFICATIONS    AND    CONTRACTS.  77 

Third. — All  important  dimensions  and  characteristics  of  the 
structures  are  fully  described  in  the  accompanying  drawings  and 
specifications,  which  form  a  part  of  this  contract. 

Fourth. — In  consideration  of  the  performance  by  the  party  of  Undertaking 
the  second  part  of  its  covenants  and  agreements,  as  hereinbefore 
set  forth,  the  party  of  the  first  part  hereby  covenants  and  agrees  to 
pay  to  the  party  of  the  second  part  as  follows: 


In  case  that  there  be  any  other  materials  furnished   by  the   ]  rice  of  Extras 
Contractor  that  are  not  included  in  this  list,  they  shall  be  paid  for 
on  the  basis  of  actual  cost  to  the  Contractor  plus  ten  (10)  per  cent, 
for  his  profit. 

It  is  understood  that  no  payments,  either  partial  or  final,  are 
to  be  made  for  any  material  which  is  to  be  used  for  falsework  or 
plant,  but  only  for  such  material  as  is  left  permanently  in  tne 
finished  construction. 

Fifth. — The   schedule  prices  to  be  adopted  in  making  partial  Schedule  of  Prices 
payments  for  all  work  as  it  progresses  are  to  be  as  follows: 


Sixth.— All  material  paid  for  by  the  party  of  the  first  part  Title  to  Material 
shall  be  deemed  to  have  been  delivered  to,  and  to  have  become 
the  property  of  the  said  first  party,  but  the  party  of  the  second 
part  hereby  agrees  to  store  it  and  to  become  responsible  for  it 
during  the  continuance  of  this  agreement.  If  any  of  it  be  damaged, 
destroyed,  or  lost  from  any  cause,  including,  among  others,  floods, 
washouts,  and  fires,  the  Contractor  shall  repair  or  replace  the  same 
at  his  own  expense  to  the  satisfaction  of  the  Engineer. 

Seventh.— In  case  the  party  of  the  first  part,  notwithstanding  Waiver 
the  failure  of  the  party  of  the  second  part  to  complete  its  work 
within  the  time  specified,  shall  permit  the  said  second  party  to 
proceed,  and  continue,  and  complete  the  same,  as  if  such  time  had 
not  lapsed,  such  permission  shall  not  be  deemed  a  waiver  in 
any  respect,  by  the  first  party,  of  any  forfeiture  or  liability  for 
damages  arising  from  such  non-completion  of  said  work  within 
the  time  specified,  and  covered  by  the  "Liquidated  Damages"  clause 
of  the  specifications;  but  such  liability  shall  continue  in  full  force 


78 


SPECIFICATIONS    AND    CONTRACTS. 


Written  Order  for 

Extras 


Delays 


Subletting 


Engineer's   Decision 


Negligence,  Indem- 
nity 


against  the  said  second  party,  as  if  such  permission  had  not 
been  granted. 

Eighth. — No  change  or  alteration  shall  be  made  in  the  terms  or 
conditions  of  this  agreement  without  the  consent  of  both  parties 
hereto  in  writing,  and  no  claim  shall  be  made  or  considered  for  any 
extra  work  unless  the  same  shall  be  authorized  and  directed  in 
writing  by  the  Engineer. 

Ninth. — In  the  event  of  any  delay  in  completing  the  work 
embraced  in  this  contract,  the  party  of  the  second  part  shall  be 
entitled  to  no  extra  compensation  on  account  of  such  delay,  as  it  is 
hereby  assumed  that  in  submitting  its  tender  it  took  its  chances  for 
the  occurrence  of  such  delay.  If,  however,  in  the  opinion  of  the 
Engineer,  the  Contractor  be  delayed  by  any  act  of  the  Company 
to  such  an  extent  as  to  cause  him  serious  hardship,  such  as  a  tem- 
porary cessation  of  the  work,  the  Company  shall  allow  the  Contractor 
whatever  compensation  for  such  delay  as  may  appear  to  the  Engineer 
to  be  just  and  equitable. 

Tenth.— The  party  of  the  second  part  hereby  agrees  that  it  will 
not  assign  or  sublet  the  work  covered  in  this  contract,  or  any  portion 
of  it,  without  the  written  consent  of  the  party  of  the  first  part,  but 
will  keep  the  same  within  its  control. 

Eleventh. — The  decision  of  the  Engineer  shall  control  as  to  the 
interpretation  of  drawings  and  specifications  during  the  execution 
of  the  work  under  them;  but  if  either  party  shall  consider  itself 
aggrieved  by  any  decision,  it  may  require  the  dispute  to  be  finally 
and  conclusively  settled  by  the  decision  of  the  three  arbitrators, 
the  first  to  be  appointed  by  the  party  of  the  first  part,  the  second 
by  the  party  of  the  second  part,  and  the  third  by  the  two 
arbitrators  thus  chosen.  In  case  that  the  two  first  chosen  fail  to 

agree  upon  a  third,  the  latter  shall  be  appointed  by 

By  the  decision  of  these 

three  arbitrators,  or  by  that  of  a  majority  of  them,  both  parties  to 
this  agreement  shall  be  finally  bound. 

Twelfth. — As,  according  to  the  terms  of  the  accompanying 
specifications,  which  form  a  part  of  this  contract,  the  party  of  the 
second  part  is  to  indemnify  the  party  of  the  first  part  against  all 
liability  or  damages  on  account  of  accidents  occasioned  by  the 
omission  or  negligence  of  itself,  its  agents,  or  its  workmen  during 
the  continuance  of  this  agreement,  and  against  all  claims  for 
royalties  on  patents;  it  is  hereby  agreed  that  the  party  of  the 
second  part  shall  be  promptly  and  duly  notified  in  writing  by  the 


SPECIFICATIONS    AND    CONTRACTS.  79 

party  of  the  first  part  of  the  bringing  of  any  such  suit  or  suits, 
and  shall  be  given  the  privilege  of  assuming  the  sole  defense 
thereof.  The  party  of  the  second  part  is  to  pay  all  judgments 
recovered  by  reason  of  accidents  or  patents  in  any  suit  or  suits 
against  the  party  of  the  first  part,  including  all  legal  costs,  court 
expenses,  and  other  like  expenses. 

Thirteenth. — The  Contractor  further  agrees  to  give  to  the  Com-  Bond 
pany  a  surety-company  bond,  satisfactory  to  the  party  of  the  first 

part  in  the  sum  of   

for  the  faithful  performance  of  this  contract  and  the  specifications, 
and  of  all  the  terms  and  conditions  therein  contained,  and  for  the 
prompt  payment  for  all  materials  and  labor  used  in  the  manufacture 
and  construction  of  the  structures,  and  to  protect  and  save  harmless 
the  Company  from  claims  on  patents  and  from  all  damages  to 
persons  or  property,  caused  by  the  negligence  or  claim  of  negligence 
of  the  Contractor,  his  agents,  servants,  or  employees  in  doing  the 
work,  or  in  connection  therewith,  and  from  injury  to  or  loss  of 
materials  paid  for  by  the  Company  either  partially  or  in  full  before 
the  completion  and  acceptance  of  the  construction  or  constructions. 

Fourteenth. — The    word    "Engineer"    as   used   in   this   contract   Parties  Described 
refers  to  the  Consulting  Engineers  of  the 

or  their  duly  authorized  representative. 

IN  WITNESS  WHEREOF,  the  parties  to  this  agreement  have    Execution 
hereunto  set  their  hands  and  seals. 

Dated  the  day,  month,  and  year  first  herein  written. 

WITNESSED  BY 


The  ninth  item  of  this  form,  as  originally  written  without  Extras  and  Delay 
qualification,  has  been  severely  criticized  on  more  than  one  occasion 
because  of  alleged  unfairness.  I  refer  to  the  clause  which  reads: 
"In  the  event  of  any  delay  in  completing  the  work  embraced  in  this 
contract,  the  party  of  the  second  part  shall  be  entitled  to  no  extra 
compensation  on  account  of  such  delay;  as  it  is  hereby  assumed 
that  in  submitting  its  tender  it  took  its  chances  for  the  occurrence 
of  such  delay."  I  admit  the  one-sidedness  of  this  clause,  and  that 
if  it  were  enforced  to  the  letter  by  a  narrow-minded  or  unfair 
•engineer,  it  might  effect  a  hardship  upon  the  .Contractor;  neverthe- 


80 


SPECIFICATIONS    AND    CONTRACTS. 


Cost  plus  Percentage 


Example    for    Dis- 
cussion 


Parties 


less,  as  a  matter  of  policy  we  still  leave  it  in  our  construction  con- 
tracts in  order  to  prevent  contractors  from  constantly  making  claims 
for  extras  on  account  of  trivial  delays;  but,  if  a  delay  were  of  such 
importance  as  to  necessitate  a  partial  or  total  shutting  down  of  the 
work,  we  would  certainly  see  that  the  Contractor  is  compensated 
for  the  extra  expense  to  which  he  is  put  by  stopping  and  restarting 
construction,  for  in  our  dealings  with  contractors  we  aim  always  to 
act  the  part  of  "judge"  and  not  that  of  partisan  of  the  Company. 

Once  in  a  while  it  becomes  necessary  for  a  Company  to  let 
work  on  the  basis  of  actual  cost,  plus  a  percentage  for  profit,  and 
in  this  case  special  care  has  to  be  taken  to  cover  all  possible  details 
and  eventualities  in  order  to  protect  the  Company  from  extortion 
and  needless  expense.  This  manner  of  letting  work  is  very 
favorable  to  the  Contractor,  but  is  troublesome  and  expensive  for 
the  Engineer  and  rather  risky  for  the  Company.  Under  certain 
conditions,  however,  it  is  the  only  way  in  which  the  work  can  be 
let  at  any  reasonable  figure,  such  conditions,  for  instance,  as  govern 
railroad  or  bridge  building  in  a  tropical  country  where  fevers 
are  prevalent  and  where  the  conditions  affecting  the  cost  of  con- 
struction are  practically  unknown.  My  firm  has  acted  as  engineers 
on  such  work,  and,  consequently,  we  have  learned  by  experience 
how  contracts  therefor  should  be  prepared.  The  following  is  the 
type  of  contract  that  we  would  draft  for  such  a  case: 

Let  us  assume  that  there  is  a  railroad  being  built  in  the 
tierra  caliente  of  Mexico  from  Matamoras  on  the  American  border 
through  or  near  Tampico  and  Vera  Cruz  to  the  border  of  Guatemala, 
by  an  American  company  organized  in  West  Virginia  under  the 
name  of  the  Mexican  Gulf  Coastline  Railway  Company,  and  that  it 
desires  to  let  to  the  Central  Bridge  Company  of  Kansas  City,  Mo.,  the 
contract  for  building  the  substructures  of  all  bridges  and  all  the 
culverts  on  the  line  and  for  erecting  all  the  superstructures,  the 
metal  for  which  is  to  be  furnished  and  delivered  at  the  bridge  sites 
by  the  Company.  Let  us  assume  also  that  the  basis  of  the  contract 
is  that  the  Contractor  is  to  be  paid  the  actual  cost  to  him  of  the 
entire  work,  plus  fifteen  (15)  per  cent,  for  profit. 

Under  such  conditions  we  would  prepare  specifications  of  our 
standard  type,  with  possibly  a  few  modifications,  and  would  attach 
them  to  the  following  contract: 

MEMORANDUM  OF  AGREEMENT,  Made  and  signed  this  four- 
teenth day  of  March,  1905,  by  and  between  the  Mexican  Gulf  Coast- 
line Railway  Company,  a  corporation  of  the  State  of  West  Virginia, 


SPECIFICATIONS    AND    CONTRACTS.  81 

U.  S.  A.,  and  having  its  principal  business  office  in  New  York  City, 
N.  Y.,  the  party  of  the  first  part,  and  sometimes  termed  in  this 
agreement  and  in  the  specifications  the  "Company,"  and  the  Central 
Bridge  Company,  a  corporation  of  the  State  of  Missouri,  U.  S.  A., 
and  having  headquarters  at  Kansas  City,  Mo.,  the  party  of  the  second 
part,  and  sometimes  termed  in  this  agreement  and  in  the  specifica- 
tions the  "Contractor." 

WHEREAS,  The  party  of  the  first  part  has  already  begun  the   Preamble 
construction  of  its  road  at  several  points  along  its  line,  which  starts 
from  the  American  border  at  Matamoras,  Mexico,  and  parallels  the 
Gulf  coast,  running  near  the  cities  of  Tampico,  Tuxpan,  and  Vera 
Cruz,  and  extending  to  the  border  of  Guatemala,  and 

WHEREAS,  The  party  of  the  first  part  has  already  entered 
into  contract  with  certain  American  firms  for  the  manufacture  of 
the  metal-work  for  the  superstructure  of  all  the  bridges  required  for 
its  entire  line,  and 

WHEREAS,  The  party  of  the  first  part  desires  to  let  to  some 
reliable  American  contractor  the  contract  for  building  all  the  bridge 
piers,  abutments,  and  culverts  and  for  erecting  all  the  superstruc- 
tures of  bridges  on  the  entire  line  of  its  road,  and 

WHEREAS,  The  party  of  the  second  part  makes  a  specialty  of 
building  the  substructures  and  superstructures  of  bridges,  and  has 
had  a  wide  experience  in  this  line  of  construction, 
NOW  THIS  AGREEMENT  WITNESSETH: 

First.— The  party  of  the  second  part,  for  and  in  consideration  Subject-Matter 
of  certain  payments  to  be  made  to  it  as  hereinafter  specified,  will 
furnish  all  the  materials  for  and  construct  complete  all  the  bridge 
piers,  abutments,  and  culverts,  will  erect  and  paint  all  the  metal- 
work  for  the  superstructures,  and  will  furnish  and  put  in  place  all 
the  flooring  for  the  bridges  of  the  entire  line  of  the  said  railway,  all 
in  accordance  with  the  specifications  hereunto  annexed  and  made  a 
part  hereof,  and  with  the  plans  and  directions  of  the  Engineer. 

Second.— The  party  of  the  second  part  shall  commence  the  work   Commencement 
of  construction  as  soon  after  the  signing  of  the  contract  as  it  is 
practicable  to  begin,  starting  at  as  many  different  points  along  the 
line  of  the  road  as  the  Engineer  may  direct,  and  shall  push  the  same 
to  completion  as  rapidly  as  possible. 

Third.— In  consideration  of  the  performance  by  the  party  of  the   Consideratioa 
second  part  of  its   covenants  and  agreements,  as  hereinbefore  set 
forth,  the  party  of  the  first  part  hereby  covenants  and  agrees,  for 
itself,  its  successors,  and  assigns,  to  pay  to  the  party  of  the  second 


82 


SPECIFICATIONS    AND    CONTRACTS. 


Cost  to  Include 


Plant 


Repairs 


Sickness  and  Travel- 
ing Expenses 


part  for  the  furnishing  and  completion  of  the  entire  work  the  actual 
cash  cost  thereof,  plus  fifteen  (15)  per  cent,  for  profit. 

In  computing  the  cost  of  the  work,  there  shall  be  included  all 
items  of  materials,  labor,  and  transportation  of  men,  materials,  and 
plant  to  and  fro,  but  no  allowance  will  be  made  for  cost  of  plant  or 
deterioration  of  same,  or  for  the  time  or  personal  expenses  (other 
than  railway  and  Pullman  fares)  of  the  party  of  the  second  part,  or 
for  interest  on  moneys  required  to  carry  on  the  work.  Accident 
insurance  for  employees,  insurance  against  loss  of  materials  or  plant 
by  fire  or  shipwreck,  and  all  stamps  for  documents,  and  taxes  of  all 
kinds  shall  be  considered  items  of  legitimate  expense,  and  shall  be 
allowed  for  by  the  Engineer  in  the  monthly  estimates,  as  shall  also 
the  cost  of  housing  the  workmen,  but  not  their  sustenance. 

By  the  term  "Plant"  is  meant  all  machinery  and  apparatus,  new 
or  second-hand,  such  as  engines,  dredges,  diving  apparatus,  pile- 
drivers,  wire  rope  used  for  tackle,  blocks,  forges,  riveting  apparatus, 
and  blacksmith's  tools  that  are  of  a  permanent  nature;  but  does  not 
include  such  perishable  materials  as  hemp  rope,  rubber  hose,  wheel- 
barrows, bolts,  shovels,  rubber  boots,  and  all  other  tools  and  appa- 
ratus of  a  temporary  nature.  The  decision  of  the  Engineer  shall 
control  as  to  what  is  and  what  is  not  "Plant,"  and  his  decision  shall 
be  final. 

In  respect  to  repairing  plant  and  tools  it  is  understood  that  all 
minor  repairs  that  are  done  by  the  blacksmith  and  other  employees 
of  the  Contractor  are  to  be  charged  to  the  Company,  as  are  also 
repairs  during  construction  to  the  perishable  parts  of  the  plant  and 
tools,  such,  for  instance,  as  the  timber  for  pile-drivers,  the  easily 
broken  parts  of  riveting  machinery,  and  pipes  for  boring  outfit;  but 
when  the  work  of  the  Contractor  is  finished  there  will  be  no  allow- 
ance made  to  him  for  the  deterioration  of  his  plant,  nor  will  he  be 
allowed  to  put  it  into  thorough  repair  at  the  expense  of  the  Company 
just  before  he  completes  the  entire  construction.  When  this  com- 
pletion occurs  all  plant  is  to  be  the  property  of  the  Contractor,  and 
all  other  apparatus  of  any  value  and  all  surplus  materials  are  to  be 
delivered  to  the  Company  as  per  the  directions  of  the  latter.  But  the 
Company  reserves  the  right  to  purchase  from  the  Contractor  any  of 
his  plant  at  its  actual  value  where  it  was  bought  less  a  proper  allow- 
ance for  depreciation;  and  the  Engineer  is  to  be  the  sole  arbiter 
concerning  the  actual  value  of  such  plant  in  case  that  the  Company 
and  the  Contractor  fail  to  agree  thereon. 

No  sick  or   incapacitated  employee   shall   be   included   on  the 


SPECIFICATIONS    AND    CONTRACTS.  83 

Contractor's  pay-roll  without  the  written  consent  of  the  Engineer 
in  each  and  every  case. 

In  respect  to  traveling  expenses  for  employees,  none  shall  be 
paid  for  the  journey  to  the  work  until  after  the  employee  has  been 
on  the  work  for  three  (3)  months;  and  no  return  expenses  shall  be 
allowed  unless  the  employee  has  been  discharged  on  account  of  no 
fault  of  his  own,  or  until  he  has  worked  for  the  Company  at  least 
twelve  (12)  months.  The  traveling  expenses  allowed  shall  cover 
nothing  but  the  railroad  fare,  except  that  in  the  case  of  the  Con- 
tractors and  their  regularly  salaried  employees  sleeping-car 
charges  also  shall  be  borne  by  the  Company. 

The  men's  time  spent  in  traveling  from  the  United  States  to  Travel 
their  work  is  to  be  paid  for  in  case  they  remain  three  (3)  months 
or  more  continuously  thereon;  otherwise  there  will  be  no  allowance 
for  time  spent  in  traveling.  In  no  case  will  any  workman  be 
allowed  compensation  for  the  time  spent  in  returning  home.  No 
employee  discharged  for  incompetency  or  misbehavior  shall  be 
allowed  any  return  traveling  expenses. 

If   during   the   progress   of   the   work,   in   the   opinion   of   the  Delay 
Engineer,  its  prosecution  is  being  delayed  by  reason  of  these  restric- 
tions concerning  traveling  expenses,  the  said  restrictions  may  be 
modified  or  removed  altogether  by  the  mutual  consent  in  writing  of 
the  two  parties  to  this  agreement,  but  in  this  manner  only. 

No  material  is  to  be  paid  for  until  after  it  is  delivered  at  site, 
unless  the  Company  shall  have  had  it  in  its  possession  for  over 
thirty  (30)  days. 

Medical  attendance  and  medicine  at  site  will  be  paid  for  by  the  Medical  Attendance 
Company;   but    no    other    medical    or    hospital    expenses    will    be 
allowed,  and  the  Company  will  bear  all   expenses  connected  with 
providing    boiled    and    filtered    or    condensed  water  for  drinking 
purposes. 

The  commissariat  department  shall  be  considered  as  a  thing  Commissary 
apart  from  this  contract.  The  Contractor  shall  manage  it  at  his 
own  expense,  and  shall  charge  enough  for  board  to  reimburse  himself 
for  the  entire  outlay  connected  therewith  and  to  provide  a  profit 
not  exceeding  fifteen  (15)  per  cent.  At  the  same  time  the  Company 
shall  insist  that  all  employees  be  properly  fed.  The  Company  will 
make  no  charge  for  hauling  commissariat  supplies  for  the  Contractor 
over  its  own  lines.  In  respect  to  the  proper  feeding  of  employees  and 
a  reasonable  price  for  board,  the  Engineer  shall  be  the  sole  arbiter 


SPECIFICATIONS    AND    CONTRACTS. 


Exchange 


Tools  and  Supplies 


Accounts 


Workmen 


Preparation 


Vouchers 


in  case  that  any  dispute  arise;  and  to  this  end  the  Contractor's  com- 
missariat books  shall  always  be  open  to  his  inspection. 

In  order  to  keep  the  accounts  straight,  all  payments  made  in 
Mexico  for  labor  and  materials  are  to  be  in  Mexican  money,  but  the 
Engineer's  monthly  estimates  are  to  be  made  in  American  money, 
the  rate  of  exchange  to  be  adopted  in  effecting  the  reduction  being 
that  ruling  in  the  City  of  Mexico  on  the  date  of  the  Engineer's 
estimate. 

All  bills  for  materials  purchased  outside  of  the  Republic  of 
Mexico,  exceeding  in  amount  five  thousand  dollars  ($5,000.00)  in 
gold,  after  being  approved  by  the  Engineer,  shall  be  sent  directly 
to  the  Company  for  payment;  but  the  Contractor  shall  receive  his 
fifteen  (15)  per  cent,  profit  upon  them. 

Tools  and  other  supplies  may  be  furnished  the  Contractor  by 
the  material  department  of  the  Company,  in  which  case  the  Con- 
tractor shall  receive  his  fifteen  (15)  per  cent,  profit  on  the  wholesale 
cost  to  the  company  of  any  materials  upon  which  profit  would  be 
allowed,  were  they  purchased  elsewhere. 

The  Contractor's  books  shall  at  all  times  be  open  to  the  inspec- 
tion of  an  expert  accountant  or  accountants  appointed  by  the  Com- 
pany to  investigate  the  accounts. 

The  methods  and  times  for  payments  shall  be  as  described  in 
the  accompanying  specifications,  which  form  a  part  of  this  contract. 

Fourth. — The  number  of  men  to  be  sent  from  the  United  States 
to  the  work  and  their  salaries  or  wages  shall  be  subject  to  the 
approval  of  the  Engineer,  and  he  shall  be  satisfied  as  to  their 
fitness  before  they  are  engaged.  The  number  of  men  to  be  employed 
at  each  site  shall  also  be  subject  to  the  Engineer's  approval.  He 
may  order  that  the  number  be  increased  if,  in  his  opinion,  there 
are  not  enough,  or  that  it  be  decreased,  if  it  be  too  great  for 
economic  working. 

The  Contractor  shall  purchase  plant  and  materials  in  advance 
of  the  requirements,  so  as  to  have  no  idle  men  on  the  work.  In  case 
that  he  fails  to  do  so,  the  Engineer  shall  have  the  right  to  prevent 
the  Company  from  loss  of  money  because  of  such  negligence,  by 
making  an  equitable  reduction  in  the  monthly  payments. 

The  Engineer  shall  approve  the  purchase  of  all  materials 
obtained  outside  of  the  Republic  of  Mexico  and  all  important  pur- 
chases of  materials  in  same.  The  decision  as  to  what  purchases 
are  important  and  what  are  not  shall  rest  with  the  Engineer. 

All   expense   bills   are   to   be   properly  vouchered   in   triplicate 


SPECIFICATIONS    AND    CONTRACTS.  85 

before  being  presented  to  the  Engineer  for  his  approval,  and  none 
shall  be  honored  by  the  Company  without  his  approval.  The 
Engineer  shall  attach  one  set  of  vouchers  to  his  monthly  estimates, 
shall  keep  another  set  for  his  own  records,  and  shall  return  the 
third  to  the  Contractors. 

All  pay-rolls  are  to  be  signed  by  the  payees  in  the  presence  of  Pay-Roils 
the  Engineer  or  one  of  his  duly  authorized  representatives;  and 
when  they  are  complete  they  shall  be  copied  in  duplicate  in  type- 
writing and  the  copies  shall  be  attested  by  a  notary.  One  attested  copy 
is  to  be  attached  to  the  monthly  estimate,  the  other  is  to  be  retained 
by  the  Engineer,  and  the  original  is  to  remain  the  property  of  the 
Contractor.  In  case  of  employees  unable  to  write,  the  paymaster 
shall  attach  to  the  pay-roll  an  affidavit  certifying  that  all  the  men  on 
the  said  pay-roll  have  been  paid  in  full. 

The   Company  is  not  to  be  held  liable  for  the  failure  of  the   Compliance  with 
Contractor  to  comply  with  any  of  the  Mexican  laws,  especially  those 
relating  to  books,  accounts,  and  stamping  of  documents. 

Before  the  plant  is  shipped  to  the  site  of  the  work  it  must  be 
approved  in  writing  by  the  Engineer;  and  the  Contractor  shall 
provide  in  advance  whatever  plant  the  Engineer  may  deem  necessary 
for  a  satisfactory  prosecution  of  the  work. 

Fifth.— All  material  paid  for  by  the  party  of  the  first  part  shall   Delivery  of  Ma- 

r6ri£tis 

be  deemed  to  have  been  delivered  to  and  to  have  become  the 
property  of  the  said  first  party;  but  the  party  of  the  second  part 
hereby  agrees  to  store  it  and  to  become  responsible  for  it  during 
the  continuance  of  this  agreement  or  until  it  has  been  placed  in  the 
work  and  accepted  by  the  Engineer.  If  it  be  possible,  all  materials 
that  are  liable  to  injury  by  fire  are  to  be  insured  to  as  near  their  full 

value  at  the  place  where  stored  as  is  practicable.      In  case  that  the    insurance  and   Re- 
placing 
Contractor  fail  so  to   insure  and  any  of  the  Company's  property 

that  is  in  his  charge  be  injured  or  destroyed,  it  shall  be  repaired 
or  replaced  according  to  the  directions  of  the  Engineer,  and  the  cost 
of  such  repairs  or  replacements  shall  be  deducted  by  the 
Engineer  from  the  Contractor's  monthly  estimates.  In  case  it  be 
impossible  to  insure  the  said  materials,  the  Company  will  stand 
the  cost  of  all  loss  by  fire,  provided  that,  in  the  opinion  of  the 
Engineer,  the  Contractor  used  due  diligence  in  caring  for  the 
materials  so  injured  or  destroyed;  but  the  Company  shall  in  no  way 
be  liable  for  injury  to  or  loss  of  materials  by  water,  flood,  theft,  or 
maliciousness. 


SPECIFICATIONS    AND    CONTRACTS. 


Right  of  Way 


Subletting 


Defects 


Progress 


Abandonment 


Sixth. — The  party  of  the  first  part  shall  secure  to  the  party  of 
the  second  part  the  right  to  enter  upon  the  places  to  be  occupied  by 
the  structures  and  by  the  materials  thereof  during  construction, 
free  from  cost,  damage,  or  claim  for  damage  of  any  kind  whatever. 

Seventh. — No  change  or  alteration  shall  be  made  in  the  terms 
or  conditions  of  this  agreement  without  the  written  consent  of  both 
parties  thereto. 

Eighth. — The  party  of  the  second  part  hereby  agrees  that  it  will 
not  assign  or  sublet  the  work  covered  in  this  contract,  or  any 
portion  of  it,  without  the  previous  written  consent  of  the  party  of 
the  first  part,  but  will  keep  the  same  within  its  control.  It  will 
not  be  the  policy  of  the  Company  to  permit  any  subletting  by  the 
Contractor,  because  its  principal  object  in  letting  this  contract  for 
cost,  plus  a  percentage  for  profit,  is  to  avail  itself  of  the  said  Con- 
tractor's experience,  constructive  skill,  and  ability  to  handle  men 
and  work. 

Ninth. — If  the  Engineer  should  find  occasion  to  reject  and 
insist  upon  the  removal  and  replacement  of  any  portion  of  the 
completed  or  partially  completed  work,  and  if,  in  his  opinion,  the 
Contractor  is  to  blame  for  the  defects,  the  cost  of  such  removal  and 
replacement  is  to  be  deducted  by  the  Engineer  from  the  Contractor's 
monthly  estimates. 

Tenth. — If  during  construction  it  appear  to  the  Engineer  that 
the  Contractor  is  not  making  proper  progress  on  account  of  insuffi- 
cient plant,  labor,  materials,  supplies,  or  energy,  the  Company  shall 
give  the  Contractor  notice  in  writing  that  it  is  not  satisfied  with  the 
progress  that  is  being  made,  explain  its  conception  of  the  reasons 
for  the  delay,  and  suggest  remedies  therefor.  Then,  if,  after  the 
expiration  of  twenty  (20)  days,  the  Engineer  reports  that  the 
Contractor  has  not  taken  the  steps  indicated  by  the  Company  as 
necessary  for  a  satisfactory  prosecution  of  the  work  or  other  steps 
which,  in  the  opinion  of  the  Engineer,  will  prove  equally 
effective,  the  Company  shall  have  the  right,  after  giving  the 
Contractor  a  further  twenty  (20)  days'  notice  in  writing,  to  under- 
take itself,  either  by  administration,  or  by  letting  the  contract 
to  other  parties,  the  completion  of  the  said  work  which  is  thus  being 
neglected. 

Under  these  circumstances  the  Company  shall  have  the  right 
to  enter  upon  and  take  possession  of  the  plant,  tools,  materials,  and 
supplies  of  the  said  Contractor,  or  any  part  thereof;  and  in  such 
case  the  Contractor  shall  be  allowed  a  fair  price  for  the  use  of  all 


SPECIFICATIONS    AND    CONTRACTS.  87 

plant  returned,  and  compensation  in  full  for  any  portion  thereof 
used  up  or  expended  on  the  work. 

This  provision  shall  apply  to  the  entire  work  involved  in  the 
contract  as  well  as  to  any  portion  of  it,  which  means  in  effect  that 
if,  in  the  opinion  of  the  Engineer,  the  Contractor  does  not  make  a 
practice  of  prosecuting  his  work  with  due  diligence,  thoroughness,  or 
economy,  the  Company  shall  have  the  right  to  finish  the  said  work 
in  the  manner  provided  in  this  clause  of  the  agreement. 

Eleventh. — The  decision  of  the  Engineer  shall  control,  etc.,  etc.  Engineer's   Decision 
(This  clause  is  taken  without  change  from  Waddell  &  Hedrick's 
standard  form  previously  quoted.) 

Twelfth. —  (This  also  is  from  our  standard  form  and  covers  the 
question  of  defense  of  lawsuits.) 

Thirteenth.— Whenever  the  reserve  of  ten  (10)  per  cent,  of  the  Retained  Percentage 
monthly  estimates,  provided  for  in  the  contract,  amounts  to  fifty 
thousand  dollars  ($50,000.00),  the  Company  shall  pay  to  the  Con- 
tractor twenty-five  thousand  dollars  ($25,000.00)  on  account,  so  that 
at  all  times  after  the  first  quarter-million  dollars'  worth  of  construc- 
tion is  allowed  for  in  the  estimates,  there  shall  be  a  reserve  in  the 
Company's  hands  varying  in  amount  between  twenty-five  thousand 
($25,000)  and  fifty  thousand  ($50,000)  dollars. 

Fourteenth. — The  Contractor  further  agrees  to  give  to  the  Com-  Bond 
pany  a  good  and  satisfactory  surety-company  bond  in  the  sum  of 
fifty  thousand  dollars  ($50,000.00)  gold  for  the  faithful  performance 
of  this  contract  according  to  the  specifications,  and  for  the  prompt 
payment  for  all  material  and  labor  used  on  the  work,  and  to  protect 
and  save  harmless  the  Company  from  all  damages  to  persons  or 
property  caused  by  the  negligence,  or  claim  of  negligence,  of  the 
Contractor,  or  his  agents,  servants,  or  employees  in  doing  the  said 
work  or  in  connection  therewith,  the  form  of  the  said  bond  to  be 
satisfactory  to  the  Company.  In  case,  though,  on  account  of  the 
construction  being  done  in  a  foreign  country,  there  be  experienced 
special  difficulty  or  expense  in  obtaining  a  satisfactory  surety-com- 
pany bond,  the  Contractor  shall  deposit  with  some  Trust  Company 
of  New  York  City,  to  be  named  by  the  party  of  the  first  part,  securi- 
ties to  the  full  value  of  fifty  thousand  dollars  ($50,000.00)  as  a 
guarantee  instead  of  the  aforesaid  bond,  which  securities  shall  be 
satisfactory  to  the  party  of  the  first  part.  Whatever  surety  be 
decided  upon,  it  shall  continue  in  full  force  during  the  existence 
of  this  contract;  and  it  shall  not  be  waived  or  voided  by  any  change 
in  the  plans,  specifications,  or  amount  of  work  involved,  nor  by  any 


SPECIFICATIONS    AND    CONTRACTS. 


Arbitration 


Engineer 


Registry  of  Contract 


Abandonment 


Execution 


change  in  the  contract  itself  that,  in  the  opinion  of  three  arbitrators 
(one  appointed  by  the  surety  company,  one  by  the  party  of  the  first 
part,  and  the  third  by  the  two  arbitrators  thus  chosen),  is  not  in 
equity  a  good  and  sufficient  cause  for  the  cancellation  of  the  surety. 
All  these  conditions  will  have  to  be  agreed  to  in  advance  by  the  pro- 
posed surety  company,  or  else  its  surety  will  not  be  considered  by 
the  party  of  the  first  part;  and  in  case  of  a  cash  or  equivalent 
guarantee,  the  party  depositing  the  same  will  have  to  agree  to  the 
said  conditions. 

Fifteenth. — In  case  of  any  arbitration,  if  the  two  arbitrators 
first  chosen  refuse  or  fail  to  decide  upon  a  third,  the  latter  shall  be 
appointed  by  the  Mayor  of  New  York  City.1 

Sixteenth. — The  word  "Engineer"  as  used  in  this  contract  refers 
to  the  Consulting  Engineers  of  the  Mexican  Gulf  Coastline  Railway 
Company  or  their  duly  authorized  representatives. 

Seventeenth. — Either  party  to  this  agreement  shall  at  any  time 
have  the  right  to  make  this  contract  a  public  contract  according  to 
the  laws  of  the  Republic  of  Mexico. 

Eighteenth. — In  case  that  at  any  time  the  Company  decides  to 
discontinue  either  temporarily  or  permanently  the  construction  of  its 
railroad  or  bridges,  it  shall  have  the  right  either  to  order  the  Con- 
tractor to  cease  operations  until  further  notice  or  to  cancel  the 
contract.  In  the  first  case  the  Company  shall  pay  all  the  expenses 
for  closing  down,  storing,  and  taking  care  of  the  plant,  and  starting 
work  again,  also  what,  in  the  opinion  of  the  Engineer,  is  a  proper 
allowance  for  interest  on  cost  of  plant  while  it  is  out  of  use,  together 
with  fifteen  (15)  per  cent,  on  these  amounts  for  profit;  and  in  the 
second  case  the  Contractor  is  to  be  paid  in  full  for  all  work  done  and 
materials  furnished  up  to  the  date  of  cessation  besides  the  entire 
cost  of  transporting  the  men  and  plant  back  to  Kansas  City, 
U.  S.  A.,  with  the  usual  fifteen  (15)  per  cent,  added  for  profit. 

IN  WITNESS  WHEREOF,  the  parties  to  this  agreement  have, 
in  the  City  of  New  York,  hereunto  set  their  hands  and  seals. 

Dated   the  day,    month   and  year   first  herein   written. 


Attest. 


Secretary  of  the  Mexican  Gulf  Coast- 
line Railway   Company. 

[Seal] 

Secretary  of  the  Central  Bridge  Com- 
pany. 

[Seal] 


Mexican  Gulf  Coastline  Railway 
Company. 


By 


By 


President. 


Central  Bridge  Company. 


President. 


1The    Mayor   might  decline   to   appoint,    or   his   appointee    might   be   a 
politician. 


SPECIFICATIONS    AND    CONTRACTS.  89 

You  may  have  noticed  that  while  this  contract  contains  many  Liquidated  Damages 
clauses  that  are  not  included  in  the  ordinary  type  of  construction 
contract,  the  latter  has  certain  provisions  that  do  not  exist  in  the 
former,  notably  a  clause  for  "liquidated  damages."  The  reason 
for  this  omission  is  that  under  the  assumed  conditions  it  was 
impossible  to  set  any  dates  for  the  completion  of  the  various 
structures  or  of  the  entire  work  involved;  hence  no  penalty  could  be 
demanded. 

I  desire  to  call  your  attention  to  a  feature  of  this  method  of  Cost-plus-Percentage 
letting  work  on  a  percentage  basis  that  is,  perhaps,  foreign  to  the 
subject  of  the  lecture — viz.,  the  unusually  large  amount  of  labor  that 
it  involves  for  the  engineers,  who,  in  addition  to  their  ordinary 
duties,  have  practically  to  assume  the  functions  of  administrators. 
For  this  reason  their  fees  on  such  work  should  be  greater  than  on 
ordinary  contract  construction. 

As  it  is  my  intention  to  send  to  each  of  you  later  a  copy  of  this    Practical  Problem, 

Contract  Plan 
lecture,  I  am  going  to  ask  that  you  study  the  preceding  contract 

carefully  and  check  it  against  the  list  of  requirements  that  I  have 
given  for  scientific  contract-writing,  in  order  to  see  whether  any- 
thing of  importance  has  been  omitted  and  how  thoroughly  the 
document  has  been  prepared.  This  suggestion  will  apply  also  to  all 
the  succeeding  examples  of  contracts.  Such  a  study  will  do  far 
more  to  teach  you  how  to  prepare  proper  contracts  than  would  the 
listening  to  twenty  lectures.  You  could,  if  you  so  desire,  carry  the 
study  still  further  by  assuming  all  the  conditions  precedent  for  some 
other  type  of  contract,  then  prepare  the  document  so  as  to  embody 
in  it  all  the  principles  and  important  features  that  I  am  advocating. 
On  account  of  your  inexperience  in  the  business  features  of  engineer- 
ing, your  productions  would  naturally  be  somewhat  crude,  but  the 
benefit  to  yourselves  from  the  preparation  of  such  essays  would  be 
very  great,  especially  if  you  were  to  submit  them  for  criticism  to 
some  good  legal  authority. 

Contracts  looking  to  the  development  of  larga  enterprises  are 
not  uncommon,  but  the  attendant  conditions  are  generally  rather 
vague  and  uncertain;  hence  the  drafting  of  a  pioper  agreement 
between  the  various  parties  concerned  is  quite  a  difficult  matter. 

Let   us   assume   that   there   is   a   project   on   foot  to   build   in   Example,  Promoters' 

Agreement 
Colorado  a  large  dam  across  Lonetree  Gulch  for  the  double  purpose 

of  irrigating  the  lands  below  the  site  and  of  developing  electric 
power  to  be  transmitted  to  Denver,  and  that  a  company  named  the 
Lonetree  Gulch  Development  Company  has  been  duly  organized 


90 


SPECIFICATIONS    AND    CONTRACTS. 


Enterprise 


Franchise 


Charter  of  Limita- 
tions 


under  the  laws  of  the  State  of  Colorado  by  John  Smith  and  Arthur 
Jones,  real  estate  brokers  of  Denver,  for  the  purpose  of  consum- 
mating the  enterprise.  Let  us  assume  also  that  these  men  in  doing 
the  preliminary  work  necessary  to  secure  the  charter,  after  spending 
four  thousand  dollars  ($4,000.00),  have  exhausted  all  of  their 
resources,  and  that,  in  order  to  bring  the  project  into  proper  shape  to 
present  to  financiers,  considerable  expensive  engineering  work  is 
essential.  On  this  account  they  have  gone  to  Wallace  &  Henderson, 
Consulting  Engineers,  of  Kansas  City,  Mo.,  who  make  a  specialty  of 
engineering  large  enterprises,  and  requested  their  assistance.  These 
engineers  have  called  in  Green  &  Robinson,  electrical  engineers, 
also  of  Kansas  City,  Davidson  &  Osgood,  masonry  contractors,  of 
Chicago,  and  Holman  &  Curtis,  grading  contractors,  of  Denver,  to- 
share  with  them  the  expense  of  doing  all  the  preliminary  work,, 
which  they  estimate  will  cost  $6,000  in  actual  cash,  with  no  allowance 
for  personal  engineering  services. 

The  original  promoters  have  agreed  to  deliver  to  the  engineering 
and  contracting  firms  eighty  (80)  per  cent,  of  their  entire  holdings 
in  the  enterprise,  in  compensation  for  the  engineering  work  neces- 
sary to  prepare  a  presentation  of  the  scheme  so  thoroughly  drawn 
that  it  will  receive  due  consideration  from  capitalists.  The  two- 
contracting  firms  have  agreed  to  subscribe  six  thousand  dollars 
($6,000.00)  each  to  the  general  fund.  The  two  engineering  firms  are- 
to  receive  three  thousand  dollars  ($3,000.00)  each  as  compensation 
in  full  for  their  cash  outlay,  and  are  to  devote  their  time  and  atten- 
tion to  the  preliminary  work  continuously  till  its  completion. 

It  is  understood  that  the  Lonetree  Gulch  Development  Company 
has  organized  and  has  held  sufficient  meetings  to  enable  it  to  secure 
from  the  State  of  Colorado  the  charter  for  constructing  the  dam, 
irrigation  system,  and  power  plant,  but  that  no  stock  has  been 
issued,  only  enough  having  been  subscribed  for  to  qualify  the 
board  of  directors.  The  promoters  value  their  charter  and  the- 
recorded  results  of  the  work  that  they  have  done  at  fifteen  thousand 
dollars  ($15,000.00),  but  are  willing  to  dispose  of  eighty  (80)  per 
cent,  of  their  entire  holdings  for  a  preliminary  cash  payment  of 
four  thousand  dollars  ($4,000.00),  and  eight  thousand  dollars 
($8,000.00)  to  be  paid  to  them  by  the  two  contracting  firms  and 
the  two  engineering  firms  jointly  immediately  after  the  enterprise 
is  financed  and  when  compensation  for  their  past  and  future  work  is 
assured. 

It  is  understood  also  that,  as  the  Lonetree  Gulch  Development 


SPECIFICATIONS   AND   CONTRACTS.  91 

Company's  charter  will  expire  in  about  six  (6)  months,  the  original 
promoters  are  to  have  its  privileges  extended  by  the  State  Legisla- 
ture for  another  three  years,  and  that  this  must  be  done  before  the 
first  payment  of  four  thousand  dollars  ($4,000.00)  on  account  will 
be  made  by  the  purchasers. 

The  eighty  (80)  per  cent,  of  their  holdings  that  the  promoters  Compact 
sell  is  to  be  divided  equally  among  the  four  buyers,  so  that  each 
engineering  company,  each  contracting  company,  and  the  original 
promoting  company  shall  hold  twenty  (20)  per  cent,  of  the  capital 
stock  when  it  is  distributed,  which  will  be  after  the  preliminary 
engineering  work  is  done  and  before  the  financiers  are  approached. 

After  paying  the  promoters  four  thousand  dollars    ($4,000.00)   JnTfe?°eering    Ex" 

pcnscS 

on  account  and  the  engineers  six  thousand  dollars  ($6,000.00)  to 
reimburse  them  for  their  cash  expenditures,  there  will  be  left  two 
thousand  dollars  ($2,000.00)  out  of  the  twelve  thousand  dollars 
($12,000.00)  subscribed  by  the  two  contractors.  This  balance  is  to 
be  held  by  the  Consulting  Engineers  to  defray  traveling  and  other 
expenses  incident  to  the  financing  of  the  project  after  the  preliminary 
engineering  work  and  estimates  are  completed. 

It  is  further  understood  that  the  bargain  made  with  the  Engineering  Talent 
financiers  is  to  be  conditioned  on  Wallace  &  Henderson  being 
retained  as  principal  engineers  of  the  enterprise,  with  Green  & 
Robinson  as  consulting  electrical  engineers,  and  that  the  total  com- 
pensation for  engineering  is  to  be  not  less  than  five  (5)  per  cent,  of 
the  entire  cost  of  the  work,  including  right  of  way  and  all  other 
expenses  connected  with  the  consummation  of  the  enterprise  and 
completion  of  the  construction,  which  fee  is  to  be  divided  between 
the  two  firms  in  the  ratio  of  the  contract  prices  of  the  portions  of 
the  construction  under  their  respective  jurisdictions.  It  is  also 
conditioned  on  the  understanding  that  the  contract  for  the  masonry 
dam  and  for  the  construction  required  for  power  development 
and  transmission  is  to  be  given  to  Davidson  &  Osgood,  and  that  for 
the  irrigation  works  and  any  other  construction  that  there  may  be 
to  Holman  &  Curtis,  at  schedule  rates  determined  by  the  Consulting 
Engineers  on  the  basis  of  estimated  actual  cost  plus  twenty  (20)  per 
cent,  for  profit. 

It  is  understood  that  in  dealing  with  the  financiers  the  latter  Financial  Backing 
will  demand  a  large  portion  of  the  capital  stock,  and  that  the  exact 
amount  thereof  which  they  are  to  receive  will  be  settled  by  mutual 
agreement  between  the  financiers  on  one  side  and  the  five  interested 
parties  on  the  other,  and  that  the  decision  of  a  majority  of  the  five 


92 


SPECIFICATIONS    AND    CONTRACTS. 


Draft  of  Contract 


Parties 


Preambles 


in  respect  to  this  and  all  other  matters  in  controversy  shall  govern. 
After  the  amount  of  stock  to  be  relinquished  is  determined,  each  of 
the  five  equal  holders  of  the  entire  stock  shall  relinquish  the  per- 
centage of  his  holdings  that  has  been  agreed  upon. 

Under  the  preceding  circumstances  and  conditions  the  follow- 
ing is  the  draft  of  contract  that  I  would  make  to  define  and  secure 
the  interests  of  all  concerned  and  to  prevent,  if  possible,  the 
financiers  from  taking  more  of  the  cream  of  the  enterprise  than  the 
amount  to  which  they  are  justly  entitled: 

MEMORANDUM  OF  AGREEMENT,  Made  and  signed  this 
twentieth  day  of  March,  1905,  by  and  between  John  Smith  and 
Arthur  Jones,  the  party  of  the  first  part  and  sometimes  termed 
herein  the  "Incorporators,"  real  estate  brokers  of  Denver,  Colo., 
and  sole  owners  of  the  stock  in  the  Lonetree  Gulch  Development 
Company,  a  corporation  of  the  State  of  Colorado,  and  the  firm  of 
Wallace  &  Henderson,  Consulting  Engineers,  of  Kansas  City,  Mo., 
the  party  of  the  second  part,  and  sometimes  termed  herein  the 
"Consulting  Engineers,"  and  the  firm  of  Green  &  Robinson,  elec- 
trical engineers,  of  Kansas  City,  Mo.,  the  party  of  the  third  part, 
and  sometimes  termed  herein  the  "Electrical  Engineers,"  and  the 
firm  of  Davidson  &  Osgood,  masonry  contractors,  of  Chicago,  111., 
the  party  of  the  fourth  part,  and  sometimes  termed  herein  the 
"Masonry  Contractors,"  and  the  firm  of  Holman  &  Curtis,  grading 
contractors,  of  Denver,  Colo.,  the  party  of  the  fifth  part,  and  some- 
times termed  herein  the  "Grading  Contractors." 

The  four  firms — viz.,  Wallace  &  Henderson,  Green  &  Robinson, 
Davidson  &  Osgood,  and  Holman  &  Curtis — respectively  the  second, 
third,  fourth  and  fifth  parties  to  this  agreement,  are  sometimes 
hereinafter  termed  the  "Purchasers,"  the  five  parties  to  the  contract 
are  hereinafter  sometimes  termed  collectively  the  "Syndicate,"  and 
the  financiers  who  will  later  be  requested  to  subscribe  the  money 
for  the  construction  will  be  termed  for  convenience  the  "Bankers." 

WHEREAS,  The  party  of  the  first  part  as  incorporators  and  sole 
stock-owners  of  the  Lonetree  Gulch  Development  Company  has 
obtained  from  the  State  of  Colorado  a  charter  permitting  it  to  build 
a  dam  across  Lonetree  Gulch  at  a  point  to  be  selected  by  its  engi- 
neers for  the  purpose  of  irrigating  certain  lands  and  developing 
and  transmitting  power,  and 

WHEREAS,  The  party  of  the  first  part  has  spent  in  cash  some 
four  thousand  dollars  ($4,000.00)  on  preliminary  surveys  and 
borings,  and 


SPECIFICATIONS    AND    CONTRACTS.  93 

WHEREAS,  The  party  of  the  first  part  recognizes  the  fact  that, 
in  order  so  to  present  its  project  to  capitalists  as  to  induce  them  to 
subscribe  for  the  bonds  of  the  Company,  it  is  necessary  to  do  con- 
siderable expensive  engineering  work  and  to  prepare  from  the 
results  of  it  preliminary  plans,  specifications,  estimates  of  cost, 
estimates  of  revenue,  and  other  papers;  and  has  in  consequence 
approached  the  party  of  the  second  part  with  the  suggestion  that  it 
form  a  ccmbinaticn  to  buy  a  controlling  interest  in  the  company 
and  to  do  all  the  said  preliminary  engineering  work  and  finance  the 
project,  and 

WHEREAS,  The  party  of  the  second  part,  not  being  expert  in 
electrical  engineering,  has  decided  to  take  in  with  it  the  party  of 
the  third  part  to  do  all  the  engineering  on  the  power  develop- 
ment, and 

WHEREAS,  The  engineers,  not  having  the  necessary  cash  to 
spare  for  the  development  of  the  enterprise,  have  called  in  the  par- 
ties of  the  fourth  and  fifth  parts  to  take  a  share  of  it  in  considera- 
tion of  their  furnishing  the  money  required  for  the  preliminary 
expenses,  and 

WHEREAS,  The  parties  of  the  second  and  third  parts  desire 
to  secure  the  entire  engineering  work  involved  in  the  construction 
of  the  dam  and  irrigation  plant,  and  in  the  development  of  the 
power,  and 

WHEREAS,  The  parties  of  the  fourth  and  fifth  parts  desire 
to  secure  contracts  for  building  the  dam,  irrigation  plant,  and 
all  the  machinery,  houses,  and  other  constructions  for  power 
development.1 

NOW  THIS  AGREEMENT  WITNESSETH: 

First. — The  party  of  the  first  part  hereby  agrees,  for  a  consid*  Stock  Consideration 
eration  hereinafter  mentioned,  to  transfer  to  the  parties  of  ^he- 
second,  third,  fourth,  and  fifth  parts,  jointly,  eighty  (80)  per  cent 
of  its  entire  holdings  in  the  said  project,  including  the  before^ 
mentioned  charter  from  the  State  of  Colorado,  and  all  the  plans% 
notes  of  surveys,  and  estimates  made  to  date  by  or  for  the  party  of 
the  first  part,  in  order  that  the  Purchasers  may  use  them  in  their 
work  of  completing  the  plans,  estimates,  and  other  documents  to 
present  to  financiers. 


1  A  good  practice  is  to  insert  a  general  clause,  making  mutual  covenants 
or  agreements  between  the  parties,  thus  : — "For  and  in  consideration  of  the 
mutual  agreements  herein  contained,  it  is  hereby  mutually  agreed  between 
the  parties  hereto  as  follows  :" 


94 


SPECIFICATIONS    AND    CONTRACTS. 


Stock  Distribution  Second. — As  payment  for  the  said  eighty   (80)   per  cent,  of  the 

Incorporators'  holdings  the  Purchasers  agree  as  follows: 

A.  To  pay  to  the  Incorporators  the  sum  of  twelve  thousand 
dollars  ($12,000.00),  four  thousand  dollars  ($4,000.00)  thereof 
within  thirty  (30)  days  after  the  extension  of  the  charter  for 
another  three  (3)  years  has  been  granted  by  the  State  of  Colorado, 
and  the  remaining  eight  thousand  dollars  ($8,000.00)  within 
xliirty  (30)  days  after  the  entire  project  has  been  financed,  the 
capital  secured,  and  the  Purchasers  assured  of  their  contracts 
for  the  engineering  and  construction  of  the  entire  work  by  payment 
to  them  from  the  Bankers  of  not  less  than  twenty  thousand  dollars 
($20,000.00)  on  account. 

Subject-Matter  B.     To  do  at  their  own  expense  all  the  preliminary  engineering 

work  required  for  putting  the  project  in  proper  condition  to  present 
to  capitalists,  including  surveys  for  the  dam,  irrigating  ditches,  and 
transmission  line  for  power;  borings  for  the  foundations  of  the  dam; 
plans  and  specifications  for  the  dam,  irrigation  system,  and  power 
development  and  transmission;  a  complete  detailed  estimate  of 
cost  of  the  entire  enterprise,  including  right  of  way,  land,  construc- 
tion, machinery,  legal  fees,  administration,  and  engineering;  a  com- 
plete and  detailed  estimate  of  probable  earnings,  and  an  exhaustive 
and  well-drafted  prospectus. 

Best  Endeavors  C.     To   do   their  best    (with  the   aid   of  the  Incorporators)    to 

finance  the  project  and  to  secure  bonuses  and  other  aid  from  the 
United  States  and  State  Governments  and  from  individuals  who 
would  be  directly  benefited  by  the  consummation  of  the  enterprise, 
and  thus  by  the  united  efforts  of  the  entire  Syndicate  to  secure 
the  necessary  money  to  build  the  said  dam,  irrigation  system,  and 
power  plant. 

Third. — The  parties  of  the  second  and  third  parts,  in  consid- 
eration of  certain  remuneration  hereinafter  mentioned,  hereby  agree 
to  do  at  their  own  expense  all  of  the  before-mentioned  preliminary 
engineering  work,  including  the  making  of  all  surveys,  borings,  plans, 
and  estimates,  and  •  the  preparation  of  the  prospectus,  and  to  give 
to  the  said  work  their  undivided  attention  and  the  full  benefit  of 
their  experience  and  professional  skill.  They  also  agree  to  finish 
in  the  shortest  practicable  time  consistent  with  thoroughness  the 
entire  work  previously  described. 

Working  Capital  Fourth. — The  parties  of  the  fourth  and  fifth  parts  hereby  agree 

to  deposit  in  the  hands  of  the  party  of  the  second  part  six  thousand 
dollars   ($6,000.00)   each  so  as  to  form  a  working  capital  of  twelve 


Preliminary    Opera- 
tions 


SPECIFICATIONS    AND    CONTRACTS.  95 

thousand  dollars  ($12,000.00),  which  capital  will  hereinafter  be 
termed  the  "Purchasers'  Fund."  This  fund  is1  to  be  utilized  in 
making  the  first  payment  of  four  thousand  dollars  ($4,000.00)  on 
account  to  the  Incorporators,  paying  for  the  preliminary  engineering 
work,  and  presenting  the  fully  prepared  project  to  the  Bankers. 

Fifth. — The  parties  of  the  second  and  third  parts  are  to  be1  paid  Advances 
out  of  the  Purchasers'  Fund  the  sum  of  six  thousand  dollars 
($6,000.00),  to  be  divided  equally  between  them  as  compensation  for 
their  cash  outlay  in  connection  with  the  preliminary  engineering 
work  described  previously;  and  this  amount  is  to1  be  paid  to  them 
as  soon  as  they  deliver  to  the  Syndicate  the  complete  papers  for 
submission  to  the  Bankers. 

Sixth.— As  scon  as  the  preliminary  engineering  work  is  finished  Stock  Issue 
and  the  various  papers  depending  upon  it  are  prepared,  a  copy  of 
each  of  the  said  papers  shall  be  delivered  to  each  member  of  the 
Syndicate,  and  within  ten  (10)  days  from  the  date  of  such  delivery 
the  Incorporators  shall  issue  and  distribute  to  the  Purchasers  their 
eighty  (80)  per  cent,  of  the  capital  stock  of  the  Lonetree  Gulch 
Development  Company.  The  amount  of  stock  thus  delivered  to  the 
Purchasers  shall  immediately  be  distributed  equally  among  the  four 
firms  of  which  the  said  Purchasers  are  composed. 

Seventh.— The  two  thousand  dollars  ($2,000.00)  remaining  in  Exploitation 
the  Purchasers'  Fund  after  the  Promoters  and  the  Engineers  are 
paid  is  to  be  used  in  presenting  the  project  to  the  Bankers;  and  in 
case  that  it  be  insufficient  for  the  purpose,  each  member  of  the 
Syndicate  will  be  required  to  contribute  to  the  said  fund  from  time 
to  time  a  certain  small  sum  of  money  to  be  determined  by  the  Con- 
sulting Engineers  as  requisite  for  the  purpose. 

Eighth. — When  the  Syndicate  is  making  its  bargain  with  the  Bonus 
Bankers  for  the  development  of  the  project,  it  will  be  necessary  to 
turn  over  to  them  a  portion  of  the  capital  stock  of  the  Company, 
which  portion  the  Syndicate  will  naturally  strive  to  make  as  small 
as  possible.  Each  of  the  five  parties  to  this  agreement  shall  turn 
over  to  the  said  Bankers  the  portion  of  his  total  stock  agreed  upon, 
thus  leaving  the  said  five  members  equal  owners  of  the  balance  of 
the  said  capital  stock. 

This  entire  balance  of  stock  is  to  be  deposited  with  a  Trustee,   Stock  Syndicate 
selected  by  a  majority  vote  of  the  five  members  of  the  Syndicate,  to 
be  held  by  him  until  the  completion  of  the  entire  construction  of  the 


xThe  substitution  of  the  future  "shall  be"   for  the  infinitive  "is  to  be" 
is  preferable. 


96  SPECIFICATIONS    AND    CONTRACTS. 

dam,  irrigation  system,  and  power  plant.  Should,  however,  as 
hereinafter  provided  for,  any  member  of  the  Syndicate  be  expelled  by 
a  majority  vote  of  that  body,  the  Trustee  shall  transfer  on  his  books, 
as  directed  by  the  Syndicate,  the  stock  of  the  said  expelled  member. 
As  soon  as  the  said  construction  has  been  completed  and  the 
accounts  of  the  Syndicate  have  been  finally  settled,  but  not  before, 
the  Trustee  shall  deliver  to  the  owners  thereof  the  stock  standing  in 
their  names  on  the  books. 

In  case  of  any  disagreement  between  the  members  of  the 
Syndicate  concerning  the  proportion  of  the  total  stock  to  be 
relinquished  to  the  Bankers  or  concerning  any  other  matter  not 
specially  covered  herein,  a  majority  vote  of  the  said  members  of  the 
Syndicate  shall  rule,  and  there  shall  be  no  appeal  from  any  formal 
decision  of  the  majority  of  the  said  Syndicate. 

Promoters  to  Staud  Ninth. — When    the    Syndicate     makes     its     bargain    with    the 

Bankers,  its  members  shall  stand  firm  for  the  following  basis  of 
agreement,  and  no  modification  whatsoever  shall  be  made  in  the 
terms  thereof  without  the  unanimous  consent  in  writing  of  all  five 
members  of  the  said  Syndicate. 

A.  The  party  of  the  second  part  is  to  be  retained  to  do  the 
entire  engineering  work  in  connection  with  the  designing  and  con- 
struction of  the  dam  and  irrigation  system. 

B.  The  party  of  the  third  part  is  to  be  retained  to  do  the 
entire    engineering    work    in    connection    with    the    designing    and 
construction  of  the  power  plant  and  the  power  transmission  line. 

C.  The  compensation  cf  the  engineers  for  the  work  that  they 
do  after  the  project  has  been  financed  shall  not  be  less  than  five  (5) 
per  cent,  of  the  entire  cost  of  the  enterprise  (barring,  of  course,  the 
cost  of  the  engineering  itself) ;   and  they  shall  divide  the  total  fee 
between  them  in  the  proportion  that  the  contract  cost  of  the  work 
done  under  each  one's  charge  bears  to  the  total  contract  cost  of  the 
entire  work. 

D.  The  party  cf  the  fourth  part  is  to  be  given  the  contract 
for  building  the  dam,  power  plant,  and  transmission  line  at  schedule 
rates  figured   by  the  Consulting  Engineers  on  the  basis  of  actual 
cash  cost,  plus  twenty  (20)   per  cent,  for  profit. 

E.  The  party  of  the  fifth  part  is  to  be  given  the  contract  for 
constructing  the  irrigation  system  and  any  other  construction  there 
may  be  besides  that  herein  mentioned,  at  schedule  rates  figured  by 
the   Consulting  Engineers   on  the  basis   of   actual   cash   cost,   plus 
twenty  (20)  per  cent.,  for  profit. 


SPECIFICATIONS    AND    CONTRACTS.  97 

F.  In  case  that  either  the  Bankers  or  the  Contractors  fail  to 
approve  the  Consulting  Engineers'  figures  for  the  schedule  prices, 
the   dispute   is   to   be   settled  by   arbitration,   one   arbitrator   being 
appointed  by  each  of  the  two  disputants  and  the  third  by  the  two 
thus  chosen.     In  case  that  the  said  two  fail  to  agree  upon  a  third 
arbitrator,   the  latter  is  to   be   appointed   by  the   Governor  of  the 
State  of  Colorado.     By  the   decision  of  a  majority  of  these  three 
arbitrators  the  said  schedule  rates  are  to  be  finally  determined. 

G.  In  case  that  the  Bankers  decide  that  the  construction  is  to 
be  done  by  some  other  organization  than  the  Lonetree  Gulch  Devel- 
opment Company,  the  members  of  the  Syndicate  are  to  receive  free 
of  charge  the  same  percentages  of  stock  in  the  new  organization  as 
it  was  agreed  upon  that  they  were  to  retain  finally  in  the  original 
company. 

Tenth. — The  entire  agreement  is  based  upon  the  assumption  Conditions  Precedent 
that  the  Legislature  of  the  State  of  Colorado  will  grant  to  the  Lone- 
tree  Gulch  Development  Company,  its  successors  or  assigns,  an  exten- 
sion of  time  of  three  (3)  years  for  starting  work  upon  the 
construction  and  the  same  amount  for  the  completion  thereof.  It 
the  said  extension  of  time  be  refused  by  the  Legislature,  this 
agreement  is  to  become  null  and  void. 

Eleventh. — If  in  the  future  it  be  found  necessary  to  obtain  United  Efforts 
from  the  Colorado  Legislature  any  further  extension  or  extensions 
of  time  for  either  starting  or  finishing  the  construction,  or  for  both, 
the  Purchasers  and  the  Incorporators  hereby  agree  to  use  their  best 
united  efforts  to  secure  such  extension  or  extensions;  and  any 
expense  incurred  in  obtaining  such  extension  or  extensions  shall  be 
borne  equally  by  the  five  parties  to  this  agreement. 

Twelfth. — The   obligations  and  benefits  of  this  agreement  are    Legal  Representa. 
to  be  binding  upon  and  to  accrue  to  not  only  the  various  parties  to 
this  agreement,  but  also  their  executors,  administrators,  successors, 
or  assigns,  as  the  case  may  be. 

Thirteenth.— This  agreement  shall  continue  in  existence  either    Duration  of  Contract 
until  the  entire  project  is  consummated,   or  until   the  charter  of 
the  Company  lapses  because  of  failure  to  have  it  extended. 

Fourteenth. — In  case  that  the  Syndicate  and  the  Bankers  come    Undivided  Attention 
to  terms  and  the  construction  proceeds,  the  parties  of  the  second 
and  third  parts  hereby  agree  to   devote  to  the  engineering  work 
their  full  time  and  best  attention,  and  to  give  to  it  the  benefit  of 
their  experience  and  skill;  and  the  parties  of  the  fourth  and  fifth 


98 


SPECIFICATIONS    AND    CONTRACTS. 


Expulsion  from  Syn- 
dicate 


parts  hereby  agree  to  do  all  the  contracting  work  in  a  thorough  and 
workmanlike  manner  and  in  strict  accordance  with  the  plans, 
specifications,  and  instructions  of  the  engineers,  all  for  the  purpose 
of  insuring  that  the  entire  construction  shall  be  first-class  in  every 
particular  and  a  credit  to  everybody  concerned  in  its  designing  and 
building. 

Harmony   Pledged  Fifteenth. — All   the   members   of   the   Syndicate   hereby   pledge 

themselves  that  they  will  in  all  cases  try  to  act  in  harmony  and 
to  do  all  they  can  to  develop  the  project  and  accomplish  the  aims 
for  which  the  Syndicate  was  formed  and  which  this  document 
expounds. 

Sixteenth. — In  case  that  any  party  of  the  Syndicate  fails  to 
keep  the  agreements  into  which  it  has  entered  in  this  document,  it 
shall  be  given  written  notice  by  a  majority  of  the  said  Syndicate 
to  the  effect  that  it  is  not  acting  in  a  manner  which  will  redound 
to  the  best  interests  of  the  Syndicate,  and  that  if  it  does  not  modify 
satisfactorily  to  the  Syndicate  its  objectionable  actions  within 
twenty  (20)  days,  it  will  be  expelled  from  the  said  Syndicate. 

Sale  of  Stock  In  this  case  the  Syndicate  will  choose  a  successor  and  will  sell 

to  him  for  as  large  a  sum  of  money  as  possible  the  entire  holdings 
of  the  expelled  party,  including  the  stock  deposited  in  the  Trustee's 
hands,  if  any  be  then  so  deposited,  and  will  deliver  to  the  said 
expelled  party  the  said  sum  of  money,  less  the  amount  required  to 
settle  the  expelled  party's  indebtedness  to  the  Syndicate  as  a  body 
and  to  its  individual  members,  and  to  square  all  accounts  of  the 
said  expelled  party  in  connection  with  its  work  that  is  covered  in 
this  agreement.  If  the  price  at  which  the  said  stock  is  to  be  sold 
be  unsatisfactory  to  the  expelled  party,  the  latter  shall  have  the 
privilege  of  trying  for  the  space  of  thirty  (30)  days  to  obtain  a 
better  price;  and  if  the  said  expelled  party  secure  a  better  price,  the 
Syndicate  shall  either  buy  the  stock  at  that  price  or  allow  the 
expelled  party  to  sell  it. 

Alterations  Seventeenth. — No   change   or   alteration   shall   be   made   in  the 

terms  or  conditions  of  this  agreement  without  the  consent  of  all 
five  (5)  parties  hereto  in  writing. 

Subletting  Eighteenth. — The  parties  to  this  agreement  hereby  agree  that 

they  will  neither  sublet  any  of  the  work  herein  described  nor  sell 
any  portion  of  their  interests  without  the  consent  of  all  five  (5) 
parties  hereto  in  writing. 


SPECIFICATIONS    AND    CONTRACTS.  99 

IN  WITNESS  WHEREOF,  the  parties  to  this  agreement  have    Execution 
hereunto  set  their  hands  and  seals  at  the   City  of  Denver,   Colo. 
Dated  the  day,  month,  and  year  first  herein  written. 

Witnessedby  (geal) 

(Seal) 

(Seal) 

(Seal) 

..(Seal) 


The  preceding  contract  is  a  very  complicated  document,  possibly    Form  Proposed 
as  complicated  as  any  of  you  are  ever  likely  to  be  required  to  draft. 
It  has  been  written  with  care  and  has  been  checked  by  competent 
authority;    hence  it   ought  to  serve  well  as  a  model  for  drafting 
agreements  between  several  parties. 

The  next  type  of  contract  that  I  shall  present  is  one  between 
the  promoters  of  an  enterprise  and  capitalists  whose  aid  they  are 
seeking  to  finance  it. 

Let  us  assume  that  the  same  firm  of  engineers — viz.,  Wallace  &    Example.  Agreement 

to  Finance 
Henderson,    of   Kansas    City,    Mo. — has    developed    the    project    for 

building  a  toll  bridge  over  the  Arkansas  River  and  an  electric  rail- 
way between  the  cities  of  Van  Buren  and  Fort  Smith,  and  has  formed 
in  Arkansas  a  company  named  the  Van  Buren  and  Fort  Smith 
Bridge  and  Railway  Company  to  build  the  proposed  line  and 
structure;  also  that  it  has  obtained  a  charter  from  the  United  States 
Government  for  bridging  the  river  and  franchises  from  the  two 
cities  for  the  construction  of  the  electric  railway;  also  that  all 
steps  thus  far  have  been  taken  in  a  perfectly  legal  manner,  and 
that  the  Company's  books  and  records  are  in  proper  shape.  Only 
enough  stock  has  been  subscribed  to  qualify  the  directors,  and  the 
entire  stock  is  thus  far  controlled  by  the  firm  of  engineers. 

It  is  assumed  also  that  these  engineers  have  taken  the  project  Scheme  Outlined 
to  a  firm  of  brokers,  Raymond  &  Effmgham,  of  Philadelphia,  who 
are  themselves  capitalists,  but  who  are  not  strong  enough  financially 
to  underwrite  the  entire  issue  of  bonds,  the  amount  of  cash  required 
for  the  enterprise  being  in  the  neighborhood  of  eight  hundred 
thousand  dollars  ($800,000.00). 

Under  these  conditions  the  contract  that  I  would  draft  is  as 
follows : 

MEMORANDUM  OF  AGREEMENT, 

by  and   between  A.   J.   Wallace   and   G.    I.   Henderson,   Consulting    Parties  Described 
Engineers,  both  of  Kansas  City,  Mo.,  and  copartners,  doing  business 


100 


SPECIFICATIONS    AND    CONTRACTS. 


Preamble 


Declaration 


Financial  Scheme 


Duration 


Sale  of  Bonds 


Capital  Stock 


under  the  firm  name  of  Wallace  &  Henderson,  the  party  of  the  first 
part,  and  sometimes  hereinafter  termed  the  "Promoters,"  and  P.  J. 
Raymond  and  S.  L.  Effingham,  both  of  Philadelphia,  Pa.,  copartners, 
doing  business  under  the  firm  name  of  Raymond  &  Effingham,  the 
party  of  the  second  part,  and  sometimes  hereinafter  termed  the 
"Brokers." 

WHEREAS,  The  said  Wallace  &  Henderson  have  prepared 
complete  in  every  essential  particular  a  project  for  building  an 
electric  railway  between  Van  Buren  and  Fort  Smith  in  the  State  of 
Arkansas,  with  a  toll  bridge  for  vehicular  and  electric  railway 
traffic  to  cross  the  Arkansas  River  on  the  line  of  the  said  railway, 
and  have  organized  in  the  State  of  Arkansas  a  company  for  building 
the  said  railway  and  bridge,  and  have  taken  the  said  project  to  the 
said  Raymond  &  Effingham  to  finance  with  a  resulting  mutual  benefit 
to  both  parties,  now,  therefore, 

THIS  AGREEMENT  WITNESSETH: 

First. — The  incorporated  name  of  the  Company  for  building  the 
electric  railway  and  bridge  is  the  Van  Buren  and  Fort  Smith  Bridge 
and  Railway  Company,  and  the  entire  stock  thereof  is  now  owned 
and  controlled  by  the  party  of  the  first  part. 

Second. — The  party  of  the  first  part  hereby  agrees  to  place  in 
the  hands  of  the  party  of  the  second  part,  and  in  its  hands  only,  the 
financing  of  its  project  to  build  the  said  electric  railway  and  bridge. 

Third. — The  party  of  the  second  part  hereby  agrees  to  use  its 
best  efforts  to  effect  the  underwriting  of  the  bonds  of  the  said 
Company,  and  in  every  way  to  endeavor  to  finance  the  project  with 
the  least  possible  delay. 

Fourth. — The  parties  hereto  hereby  agree  to  divide  equally 
between  them  all  profits  resulting  from  the  disposal  of  the  Com- 
pany's securities. 

Fifth. — The  duration  of  this  contract  shall  be  six  (6)  months 
from  the  date  of  its  signature,  but  its  life  may  be  extended  by  the 
consent  of  both  parties  hereto  in  writing. 

Sixth. — The  amount  of  bonds  to  be  sold  for  developing  the 
project  shall  be  one  million  dollars,  and  the  Brokers  in  disposing  of 
them  are  to  obtain  as  high  a  price  as  possible,  under  no  circum- 
stances parting  with  them  for  less  than  eighty-five  (85)  cents  on 
the  dollar. 

Seventh. — In  dealing  with  the  bankers  and  underwriters,  the 
Brokers  are  to  keep  as  low  as  possible  the  percentage  of  the  capital 


SPECIFICATIONS    AND    CONTRACTS.  101 

stock  of  the  Company  that  is  given  with  the  bonds;  and  under  no 
circumstances  shall  the  amount  so  given,  hypothecated,  or  pledged 
be  so  large  as  to  cause  the  control  of  the  enterprise  to  pass  out  of 
the  hands  of  the  parties  of  the  first  and  second  parts. 

Whatever  stock  is  left  over  after  the  arrangement  with  the 
bankers  and  underwriters  is  consummated  is  to  be  divided  equally 
between  the  two  parties  to  this  agreement. 

In  case  that  the  Brokers  in  making  the  sale  of  the  bonds  find   Stock  Bonus 
it  necessary  to  part  with  more  than  forty  (40)  per  cent,  of  the  capital 
stock,  they  shall  not  finally  agree  to  do  so  until  after  they  have 
received  in  writing  the   assent  of  the  Promoters   to  the  proposed 
arrangement. 

Eighth. — It  is  not  contemplated  that  either  Wallace  &  Render-  Privilege  of  n-omo 
son  or  Raymond  &  Effingham  will  be  underwriters  for  the  bonds, 
but  either  of  them  may  subscribe,  if  they  so  desire,  and  they  shall 
receive  with  the  bonds  they  buy  the  proportion  of  stock  set  apart 
to  go  to  the  underwriters,  the  same  as  if  they  were  in  no  other  way 
connected  with  the  project,  and  in  addition  to  and  entirely  apart 
from  any  profits  to  be  divided  under  this  agreement. 

Ninth. — The  Brokers  hereby  agree  that  in  any  financial  arrange-  Engineers  to  be  lie 
ment  entered  into  by  them  they  will  see  that  there  is  provision  made 
by  which  the  party  of  the  first  part  shall  be  retained  as  engineers 
of  the  Company  to  design  and  supervise  the  construction  of  the 
railway  and  bridge,  with  full  control  over  all  matters  of  an  engineer- 
ing character,  and  that  they  shall  receive  in  compensation  for  their 
services  and  for  those  of  their  assistants  a  gross  fee  of  not  less  than 
five  (5)  per  cent,  of  the  grand  total  cost  of  the  railway  and  bridge, 
excluding  from  the  said  total  only  the  Engineers'  and  the  Brokers' 
fees. 

In  the  same  manner  the  Promoters  agree,   in  so  far  as  it  is  Commission 
within  their  control,  to  see  that  Raymond  &  Effingham  receive  for 
their  services  in  financing  the  project  a  gross  fee  of  three  (3)   per 
cent,  of  the  said  grand  total  cost,  computed  as  just  described. 

It  is  distinctly  understood,  however,  that  neither  party  hereto 
is  assuming  individual  or  personal  liability  to  ths  other  for  the  said 
fee,  but  both  parties  are  in  good  faith  to  do  everything  which  lies 
in  their  power  or  control  to  see  that  the  said  fees  are  paid. 

Tenth. — No  change  or  alteration  shall  be  made  in  the  terms  or  No  Changes 
conditions  of  this  agreement  without  the  consent  of  both  parties 
hereto  in  writing. 


102 


SPECIFICATIONS    AND    CONTRACTS. 


Exnmpte,  Copartner- 
ship 


Introduction 


Preamble 


Name 


Duration 


Salar-v 


IN  WITNESS  WHEREOF,  the  parties  to  this  agreement  have 
hereunto  set  their  hands  and  seals  in  the  City  of  Philadelphia,  Pa., 
this  twentieth  day  of  March,  1905. 
Witnessed  by 

(Seal) 

(Seal) 

• (Seal) 

(Seal) 

I  shall  give  you  before  closing  one  more  example  of  contract 
preparation,  illustrating  a  type  of  agreement  that  may  be  useful  to 
you  some  day.  It  is  a  partnership  contract  between  two  engineers. 

Let  us  assume  that  Mr.  M.  S.  Clements,  hydraulic  and  sanitary 
engineer,  of  St.  Louis,  Mo.,  who  has  been  practising  successfully 
there  in  those  specialties  for  many  years,  desires  to  take  in  as 
junior  partner  his  principal  assistant  engineer,  Mr.  K.  L.  Strange, 
and  that  all  the  details  of  the  partnership  have  been  settled.  I 
shall  not  state  them  in  advance,  as  they  will  appear  in  the  document, 
which  I  would  draft  thus: 

MEMORANDUM  OF  AGREEMENT,  by  and  between  M.  S. 
Clements,  Civil  Engineer,  of  St.  Louis,  Mo.,  the  party  of  the  first 
part,  and  K.  L.  Strange,  Civil  Engineer,  of  St.  Louis,  Mo.,  the  party 
of  the  second  part. 

WHEREAS,  The  party  of  the  first  part  has  for  many  years 
been  established  in  St.  Louis,  Mo.,  as  a  consulting  hydraulic  and 
sanitary  engineer,  and  has  developed  a  large  and  successful  prac- 
tice, and 

WHEREAS,  The  party  of  the  second  part  has  been  in  the 
employ  of  the  party  of  the  first  part  for  over  seven  (7)  years, 
and  during  the  last  three  (3)  years  has  been  his  Principal  Assistant 
Engineer,  and 

WHEREAS,  The  parties  to  this  agreement  have  concluded  that 
it  will  be  mutually  beneficial  to  enter  into  a  partnership  to  prosecute 
the  business  of  civil  engineering  in  the  special  lines  of  hydraulic  and 
sanitary  work, 

NOW  THIS  AGREEMENT  WITNESSETH: 
First. — The  name  and  designation  of  the  firm  shall  be  Clements 

&  Strange,  Consulting  Engineers. 

Second. — The    agreement    shall    be    operative     on    and    after 

January  1,  1905. 

Third. — The  party  of  the  second  part  shall  in  any  event  receive 

fifteen  hundred  dollars  ($1,500.00)  per  annum;  i.  e.,  if  his  share  of 


SPECIFICATIONS  AND  CONTRACTS.  103 

the  net  profits  for  any  year  be  less  than  that  amount,  the  difference 
between  his  said  share  and  the  said  amount  shall  be  paid  to  him 
out  of  the  total  profits  of  the  firm  for  the  year,  or,  failing  these,  by 
the  party  of  the  first  part. 

Fourth. — The  share  of  the  net  profits  of  the  party  of  the  second   Share  in  Profits 
part  shall  be  as  follows: 

Up  to  January  1,  1908,  twenty-five  (25)  per  cent;  from  then 
until  January  1,  1911,  thirty  (30)  per  cent;  from  then  until  January 
1,  1914,  thirty-five  (35)  per  cent;  from  then  until  January  1,  1917, 
forty  (40)  per  cent,  and  after  the  latter  date,  forty-five  (45)  per 
cent. 

Fifth.— The  net  profits  for  any  year  shall  be  figured  by  sub-  I'rofits  Defined 
tracting  from  the  gross  receipts  for  the  said  year  the  entire 
business  expenses  for  the  year,  such  as  those  incurred  in  doing 
office  work,  field  work,  traveling,  and  advertising,  but  the  aforesaid 
guaranteed  amount  of  fifteen  hundred  dollars  ($1,500.00)  per  annum 
shall  not  be  considered  as  a  part  of  the  office  expenses. 

Sixth. — An   accurate   set   of  books   shall   be   kept,   from   which   Books  of  Account 
can  readily  be  computed  the  net  profits  for  the  year,  and  a  cash 
settlement  shall  be  made   at  the   beginning   of  each  year  for  the 
preceding  year. 

Seventh. — If  any  completed  piece  of  work  be  unpaid  for  at  the   Payments  of  Sim  res 
end  of  the  year,  it  shall  be  assumed  as  paid  for  in  making  the  settle- 
ment;  but  the  party  of  the  second  part  shall  not  receive  his  share 
of  the  delayed  payment  until  after  the-  said  payment  is  made. 

Eighth. — At  any  time  after  January  1,  1914,  the  party  of  the   increasing   interest 
second  part  shall  have  the  privilege  of  purchasing  the  balance  of  a 
half-interest  in  the  business  by  paying  to  the  party  of  the  first  part 
in  cash  one  of  the  following  sums,  according  to   the   date  of  the 
establishment  of  the  equal  partnership. 

In  1914 $15,000.00 

In  1915 13,000.00 

In  191G 11,000.00 

In  1917 ' 9,000.00 

In  1918 7,000.00 

In  1919 5,000.00 

After   1919 3,000.00 

The  payment  of  any  one  of  the  preceding  amounts  shall  not  only   Firm  Property 
entitle  the  party  of  the  second  part  to  a  half-interest  in  all  future 
business,  but  shall  also  make  him  a  half-owner  of  all  office  fixtures, 
library,  instruments,  patents,  records,  and  field  apparatus  that  may 


104 


SPECIFICATIONS    AND    CONTRACTS. 


Patents 


Joint  Patents 


Joint  Efforts 


Copyrights 


Authorship 


be  owned  by  the  party  of  the  first  part  at  the  time  of  the  formation 
of  the  equal  partnership,  it  being  understood  that  all  apparatus, 
books,  etc.,  etc.,  purchased  for  the  firm  before  the  establishment  of 
the  equal  partnership  shall  be  the  personal  property  of  the  party  of 
the  first  part,  or  simply  an  addition  to  his  present  office  property, 
notwithstanding  the  fact  that  they  have  been  paid  for  out  of  the 
funds  of  the  firm. 

Ninth. — All  royalties  from  patents  owned  by  the  party  of  the  first 
part  on  January  1,  1905,  shall  be  thrown  into  the  gross  profits  of  the 
business. 

Tenth. — If  in  the  future  any  joint  patent  is  taken  out,  it  shall 
be  the  property  of  the  office,  and  any  royalty  or  other  gain  therefrom 
shall  be  thrown  into  the  gross  receipts  of  the  office.  In  case  of  a 
dissolution  of  partnership  at  any  time,  the  future  interest  of  all  such 
joint  patents  shall  be  arranged  according  to  the  basis  of  division 
of  office  profits  governing  at  the  time  of  the  said  dissolution,  and 
both  parties  shall  afterward  have  the  right  to  use  such  patents  for 
their  own  professional  work  without  accounting;  but  in  case  of 
royalty  thereon  by  other  parties,  the  amount  of  said  royalty  shall 
be  divided  between  the  two  parties  to  this  agreement  according  to  the 
basis  of  division  herein  provided  for. 

Eleventh.— Neither  party  to  this  agreement  shall  take  out  for 
himself  any  patent  for  anything  connected  directly  or  indirectly 
with  the  work  of  the  office  without  first  obtaining  from  the  other 
party  written  permission  to  do  so;  but  a  written  refusal  or  a  verbal 
refusal  in  the  presence  of  witnesses  to  enter  into  a  proposed  joint 
patent  shall  be  considered  an  equivalent  to  giving  such  written 
permission. 

Twelfth. — If  the  parties  to  this  agreement  write  a  joint  book 
for  publication,  the  profits  on  same  shall  be  considered  a  part  of 
the  office  receipts,  and  shall  be  divided  accordingly;  and  any  technical 
book  written  by  either  party  shall  be  treated  in  like  manner  as  long 
as  the  partnership  continues.  In  case  of  a  dissolution  of  partnership, 
each  party  shall,  for  the  future,  own  outright  any  books  published  in 
his  own  name;  also  the  percentage  of  interest  in  all  joint  books 
that  is  the  basis  of  division  of  office  profits  governing  at  the  time  of 
the  said  dissolution. 

The  party  of  the  second  part,  however,  shall  be  entitled  to  no 
pecuniary  interest  in  any  books  written  by  the  party  of  the  first  part 
prior  to  January  1,  1905,  even  though  future  additions  thereto  be 


SPECIFICATIONS    AND    CONTRACTS.  105 

made.     On  the  other  hand,  no  expense  connected  with  such  solely 
individual  books  shall  be  considered  a  part  of  the  office  expenses. 

Thirteenth. — Whenever  the  contemplated  future  equal  partner-    Kqnal   interests 
ship  is  consummated,  the  profits  on  all  contracts  for  work  entered 
into  before  the  date  of  the  equal  partnership  shall  be  divided  accord' 
ing  to  the  terms  of  this  agreement,  and  shall  not  be  considered  as 
pertaining  to  the  said  equal  partnership. 

Fourteenth. — In  the  event  of  the  death  of  the  party  of  the  first  Death 
part  before  the  formation  of  the  contemplated  equal  partnership,  the 
party  of  the  second  part  shall  have  the  privilege  of  purchasing  the 
good-will  of  the  business,  together  with  all  of  the  office  fixtures, 
library,  records,  instruments,  and  other  property  connected  with  the 
business,  except  as  hereinafter  stated,  by  paying  to  the  estate  of 
the  party  of  the  first  part  the  sum  of  three  thousand  dollars 
($3,000.00)  in  cash  or  in  an  equivalent  that  will  be  satisfactory  to 
the  executors  of  the  said  estate. 

It  is  understood  that  this  sum  does  not  cover  any  patents,  Settlement 
either  individual  or  joint,  but  that  the  estate  of  the  party  of  the 
first  part  shall  have  a  half-interest  in  all  royalties  therefrom,  unless 
after  the  death  of  the  party  of  the  first  part,  the  party  of  the  second 
part  purchases  from  the  estate  the  said  patents  or  shares  in  patents. 
And  the  party  of  the  second  part  at  the  settlement  of  the  office 
affairs,  after  the  death  of  the  party  of  the  first  part,  shall  have  the 
privilege  of  purchasing  all  of  the  said  patents  at  a  price  to  be 
agreed  upon  between  the  said  second  party  and  the  said  executors;  Arbitration 
and  if  an  agreement  as  to  their  value  cannot  be  otherwise  arrived  at, 
the  price  shall  be  settled  by  arbitration,  the  party  of  the  second  part 
appointing  one  arbitrator,  the  executors  another,  and  the  two  thus 
chosen,  the  third.  In  case  of  failure  of  the  two  arbitrators  first 
chosen  to  determine  upon  a  third,  the  latter  shall  be  appointed  by 
the  Mayor  of  St.  Louis.  By  the  decision  of  the  majority  of  these 
three  arbitrators  both  the  party  of  the  second  part  and  the  executors 
shall  be  finally  bound. 

In  case,   however,  the  party  of  the  second  part  elects  not  to   Use  of  Patents 
purchase  the  said  patents,  he  shall  have  the  use  of  the  joint  patents 
by  special  agreement  in  each  case  with  the  executors,  but  the  latter 
shall  have  full  control  of  all  Clements'  individual  patents. 

In  case  of  the  death  of  the  party  of  the  first  part,  either  before    Completion  of  Work 
or  after  the  formation  of  the  contemplated  equal  partnership,  the 
party  of  the  second  part  shall  finish  all  work  on  all  contracts  then 
uncompleted,  and  shall  pay  over  to  the  estate  of  the  said  first  party 


106 


SPECIFICATIONS    AND    CONTRACTS. 


Net  Profits 


Sale  of  Patents 


Control 


Cancellation 


Hissolution 


the  latter's  full  share  of  all  net  profits  thereon,  as  computed  by  the 
rate  of  division  governing  at  the  date  of  his  death. 

Fifteenth. — In  case  of  the  death  of  the  party  of  the  second  part 
prior  to  that  of  the  party  of  the  first  part,  the  estate  of  the  former 
shall  receive  the  same  percentage  of  net  profits  from  all  unfinished 
work  as  would  have  been  his  under  the  terms  of  this  contract  at 
the  time  of  his  death.  And  the  party  of  the  first  part  shall  have  the 
use  of  all  joint  patents  held  by  the  firm,  but  the  estate  of  the  party 
of  the  second  part  shall  be  entitled  to  the  same  percentage  of  royal- 
ties accruing  from  the  use  of  the  said  joint  patents  as  the  party  of 
the  second  part  would  at  the  time  of  his  death  have  been  entitled 
to  under  the  terms  of  this  contract. 

Provided  that  the  party  of  the  first  part  shall  have  the  privilege 
of  purchasing  from  the  Strange  estate  the  interest  in  all  joint 
patents  held  by  the  party  of  the  second  part  at  the  time  of  his  death, 
according  to  the  arrangement  previously  outlined  for  the  case  of 
the  death  of  the  party  of  the  first  part. 

Sixteenth. — Until  the  contemplated  future  equal  partnership  be 
entered  into,  the  policy  and  management  of  all  business  affairs  shall 
rest  entirely  with  the  party  of  the  first  part,  but  the  party  of  the 
second  part  shall  be  consulted,  as  in  the  past. 

Seventeenth. — Should  either  party  to  this  agreement  at  any  time 
desire  to  cancel  the  same,  he  shall  give  in  writing  to  the  other  party 
twelve  (12)  months'  notice  of  his  intention  to  do  so;  and,  in  case 
of  failure  so  to  notify,  he  shall,  at  the  date  of  severing  his  connec- 
tion with  the  business,  pay  to  the  said  other  party  in  cash  the  sum 
of  one  thousand  dollars  ($1,000.00),  which  amount  shall  not  be 
considered  as  a  penalty,  but  as  liquidated  damages  (for  loss  to  the 
said  other  party)  herein  agreed  upon  by  the  contracting  parties. 

Eighteenth. — In  case  of  a  dissolution  of  partnership  with  twelve 
(12)  months'  notice,  all  work  connected  with  contracts  entered  into 
before  the  giving  of  notice  of  dissolution  shall  be  completed,  if 
possible;  and  the  profits  thereon  shall  be  divided  according  to  the 
terms  of  this  contract.  All  new  work  taken  during  these  twelve 
(12)  months  shall  belong  to  the  party  who  is  to  continue  the  business 
and  shall  be  done  at  his  expense,  the  other  party  being  concerned 
with  it  in  no  manner  whatsoever.  If  at  the  end  of  twelve  (12) 
months  there  still  be  any  old  work  uncompleted,  the  party  who  con- 
tinues the  business  of  the  office  shall  finish  it  and  shall  give  to  the 
Other  party  after  the  final  settlement  therefor  is  made  his  proper 
share  of  the  net  profits  thereon.  It  is  understood  that,  unless  other- 


SPECIFICATIONS    AND    CONTRACTS. 


107 


wise  agreed  upon,  the  party  of  the  first  part  shall  be  the  one  to  carry 
on  the  business  in  case  of  a  dissolution  of  partnership. 

Nineteenth. — But  in  the  case  of  dissolution  of  partnership  Notice  of  Dissolu- 
without  the  twelve  (12)  months'  notice,  there  shall  be  made  an 
immediate  settlement  of  the  affairs  of  the  firm,  by  which  the  party 
leaving  shall  be  paid  by  the  other  party  in  either  cash  or  notes  a 
fair  allowance  for  his  interest  in  all  unfinished  contracts.  If  the 
two  parties  cannot  agree  upon  the  terms  of  the  settlement,  the  matter 
shall  be  fixed  by  arbitration  in  a  manner  similar  to  that  herein- 
before described. 

Twentieth. — No  change  or  alteration  shall  be  made  in  the  terms    No  Changes 
or  conditions  of  this  agreement  without  the  consent  of  both  parties 
hereto  in  writing. 

Twenty-first. — The  parties  to  this  agreement  hereby  agree  that    Effort 
they  will  at  all  times  do  all  that  lies  in  their  power  to  further  and 
increase  the  business  of  the  firm,  and  to  establish  for  it  a  world- 
wide  reputation   for   doing   thorough,    honest,   scientific,    economic, 
and  skilful  work. 

IN  WITNESS  WHEREOF,    The  parties  to  this  agreement  have    Execution 
hereunto  set  their  hands  in  the  City  of  St.  Louis,  Mo.,  this  tenth  day 
of  December,  1904. 

Witnessed  by 


In  concluding  this  lecture  there  are  a  few  general  matters  of    Conclusion 
importance  to  which  I  desire  to  call  your  attention,  especially  as 
they  are  often  ignored  in  the  preparation  of  contracts. 

No  erasure  with  a  knife,   rubber,  or  other  similar  instrument    Erasures  and  Cor- 
rections 
should  be  made  in  any  legal  document,  but  if  a  mistake  has  occurred, 

it  should  be  lined  out  in  the  case  of  handwriting  and  crossed  out 
with  a  close  repetition  of  the  letter  x  in  the  case  of  typewriting. 
Corrections  like  these  must  evidently  have  been  made  while  the 
document  was  being  transcribed  and  before  it  was  signed,  while  in 
case  of  an  erasure  no  one  can  say  what  was  originally  written,  or 
that  the  correction  was  not  made  after  the  signing  of  the  document. 
As  a  matter  of  precaution,  it  is  advisable  to  have  each  signer  of  a 
contract  initial  on  the  margin  of  the  page  on  which  it  occurs  each 
correction  that  the  document  contains.  This  will  show  conclusively 
that  all  the  interested  parties  concurred  in  making  the  changes. 
However,  if  a  draft  of  an  agreement  contain  many  such  corrections, 
it  is  better  to  have  it  recopied  before  obtaining  the  signatures. 


108 


SPECIFICATIONS    AND    CONTRACTS. 


Fraudulent  Changes 


Sunday  Laws 


Deliberation 


Counsel 


Length   of  Discourse 


Theoretically,  every  contract  should  be  written  on  a  single  page, 
for  otherwise  what  is  there  to  prevent  a  dishonest  person  from 
removing  all  the  pages  except  the  last  and  replacing  them  with 
similar  pages  containing  matter  prepared  in  his  own  interests? 
Some  people  meet  this  objection  by  pasting  together  in  one  continu- 
ous piece  all  the  sheets  of  the  document  and  marking  in  red  ink  on 
the  joined  parts  a  waved  line  that  passes  alternately  from  one  sheet 
to  the  other.  Others  take  the  precaution  to  have  all  the  parties  to 
the  agreement  initial  each  page  of  the  bound  sheets.  The  manifold- 
ing of  typewritten  documents  is  a  fairly  good  means  for  preventing 
the  making  of  fraudulent  changes  in  such  papers;  but  in  case 
that  all  copies  but  one  are  destroyed,  this  check  would  become 
inoperative. 

Contracts  executed  on  Sunday  are  illegal.  They  may  be  agreed 
upon  and  drafted  on  Sunday,  but  to  be  valid  they  must  be  dated  and 
signed  on  some  other  day  of  the  week. 

It  is  always  advisable  to  let  a  contract  "get  cold"  before 
signing  it;  i.  e.,  it  should  be  set  aside  for  at  least  one  night  and  read 
over  carefully  the  next  day  by  all  the  parties  in  order  that  each 
may  make  sure  that  the  document  expresses  exactly  in  every  par- 
ticular what  has  been  agreed  upon  verbally,  and  that  there  is  no 
clause  in  it  prejudicial  to  his  interests.  By  giving  the  mind  a  rest 
one  is  often  able  to  comprehend  a  document  more  clearly  and  thus 
save  himself  or  his  clients  from  future  trouble  or  pecuniary  loss. 

After  an  engineer  has  prepared  a  contract  and  has  added  all  the 
finishing  touches  to  it,  he  should  submit  the  draft  before  it  is  signed 
to  a  competent  lawyer  for  his  comment.  This  is  better  than  letting 
the  lawyer  draw  it  in  the  first  place,  for  I  contend  that  a  competent 
engineer  can  draft  an  engineering  contract  better  than  any  lawyer; 
nevertheless,  an  independent  check  is  necessary  for  any  important 
document,  and  who  so  competent  to  check  a  legal  paper  as  an 
attorney! 

When  I  started  to  write  this  address  it  was  my  intention  to 
conclude  it  with  a  short  summary  of  the  Law  of  Contracts,  but 
its  dimensions  are  already  far  in  excess  of  those  I  originally  con- 
templated, and  perhaps,  also,  some  of  you  may  be  thinking,  in 
excess  of  the  legitimate  limits  of  a  lecture  to  long-suffering  engineer- 
ing students;  consequently  I  shall  instead  advise  you  to  study  the 
subject  carefully  in  such  standard  works  as  those  of  Wait,  Johnson, 
and  Parsons.  I  trust  that  listening  to  this  address  and  studying 
it  later  after  it  is  printed  will  lead  you  better  to  comprehend  and 


SPECIFICATIONS    AND    CONTRACTS.  109 

to  appreciate  the  dicta  of  legal  authorities  on  the  subject  of  Engineer- 
ing Contracts. 

Finally,  I  desire  to  call  your  attention  to  the  fact  that  I  have 
by  no  means  endeavored  to  cover  in  this  address  the  entire  ground 
of  this  important  subject,  but  only  to  show  you  its  practical  features 
and  how  you  may  prepare  yourselves  by  hard  study  to  become  expert 
in  the  preparation  of  legal-engineering  documents. 


Examples   for   Practice    in   Contract 
Writing. 


Cases  for  Practice  It  will  not  be  necessary  for  the  student,  before  starting  to  write 

one  of  the  contracts  outlined  in  the  following  list,  to  obtain  specimens 
of  actual  contracts  for  similar  cases,  because  all  the  necessary 
instructions  for  doing  such  writing  are  given  in  the  preceding 
lecture.  Nevertheless,  it  would  do  him  no  harm  were  he  to  peruse 
in  advance  of  beginning  his  work  a  few  such  contracts.  He  would 
probably  find,  though,  that  they  do  not  come  up  to  the  criterion  of 
excellence  and  thoroughness  given  in  that  lecture;  and  on  this 
account  it  would  hardly  pay  either  him  or  his  professor  to  take 
much  trouble  to  obtain  such  specimens  of  actual  contracts. 

In  case  that  the  student  finds  that  the  "Conditions  Precedent" 
are  not  complete  enough  to  enable  him  to  draft  a  proper  contract  for 
any  one  of  the  following  "Cases,"  he  will  be  at  liberty  to  supply  as 
he  may  see  fit  such  omitted  conditions. 

CONDITIONS  PRECEDENT  FOR  CONTRACTS  TO  BE  DRAFTED' 
FOR  PRACTICE  BY  ENGINEERING  STUDENTS. 

CASE    NO.    1. 

Electric  Street  Rail-  The    firm    of   Winans    &    Jenkinson,    Consulting    Engineers,    of 

way  and  Viaduct 

Washington,  D.  C.,  has  agreed  with  the  Capital  Rapid  Transit  Com- 
pany, of  Richmond,  Va.  (a  corporation  of  that  State),  to  do  all  the 
engineering  work  in  connection  with  the  exploiting  of  that  Com- 
pany's project  to  build  an  electric  street  railway  line  and  a  toll- 
viaduct  for  vehicular  and  other  traffic  in  the  City  of  Richmond,  and 
in  connection  with  the  designing  and  construction  of  the  said  rail- 
way and  viaduct,  in  case  that  the  Company  be  successful  in  raising 
the  necessary  money. 

The  work  of  the  Engineers  is  to  be  divided  into  three  parts,  viz.: 

A. — A  study  of  the  project  so  as  to  determine  the  total,  cost  of 

construction,  the  probable  income  from  traffic  of  all  kinds,  and  the 

probable  cost  of  operation  and  maintenance;   also  the  preparation 

of  a  report  to  the  Company  embodying  the  results  of  their  investi- 


SPECIFICATIONS    AND    CONTRACTS.  Ill 

gations,  which  report  is  to  be  put  in  proper  shape  for  submission 
to  capitalists  in  order  to  induce  them  to  subscribe  for  the  bonds 
and  other  securities  of  the  Company. 

B. — Aiding  the  officers  or  representatives  of  the  Company  in 
their  interviews  with  capitalists  and  endeavoring  in  every  legitimate 
way  to  help  finance  the  enterprise. 

C. — Doing  the  entire  engineering  work  connected  with  the 
designing  and  construction  of  the  proposed  railway  and  viaduct, 
including  inspection  of  viaduct  metal  at  the  rolling-mills  and  the 
shops,  the  operating  machinery  at  the  places  where  it  is  manufac- 
tured, and  all  other  materials  in  the  field,  unless  the  Contractors 
elect  to  have  any  of  such  materials  inspected  elsewhere,  in  which 
case  they  shall  be  so  inspected  by  the  Engineers  but  at  the  Con- 
tractors' expense. 

The  Company  is  to  pay  the  Engineers  thus: 

For  the  preliminary  work  and  report,  twenty-five  hundred 
dollars  ($2,500.00). 

For  aiding  in  financing  the  project,  nothing. 

For  designing,  inspection,  and  superintendence  of  construction, 
a  fee  of  five  (5)  per  cent  of  the  grand  total  cost  of  the  finished 
railway  and  viaduct,  the  division  of  the  said  fee  being  on  the  basis 
of  three  (3)  per  cent,  for  plans  and  specifications  and  two  (2)  per 
cent,  for  inspection  and  superintendence. 

The  Company  is  to  do  its  best  to  secure  from  Richmond  capital- 
ists one-half  of  the  money  required  for  the  entire  enterprise. 

If  the  report  of  the  Engineers  prove  unfavorable,  their  contract 
with  the  Company  is  to  be  closed,  and  they  are  to  be  paid  at  once 
the  twenty-five  hundred  dollars  ($2,500.00)  mentioned;  but  if  tt 
should  be  favorable  to  the  viaduct  and  unfavorable  to  the  railroad, 
the  Company  is  to  endeavor  to  raise  the  money  for  the  viaduct,  and 
in  case  of  its  success  the  Engineers  are  to  design,  inspect,  and 
supervise  the  construction  of  the  said  viaduct  for  five  (5)  per  cent, 
of  the  entire  cost  of  the  finished  structure. 

In  case  that  the  Engineers'  report  prove  favorable,  but  the 
Company  fail  to  secure  the  necessary  money  and  abandon  the 
enterprise,  the  Engineers  are  to  receive  a  further  payment  of  one 
thousand  dollars  ($1,000.00),  and  their  contract  is  then  to  be  ter- 
minated. 

If,  after  the  report  is  finished  and  the  project  is  presented  to 
capitalists,  it  develop  that  the  scheme  can  be  materialized  only  by 
the  resignation  of  Winans  &  Jenkinson  as  engineers  for  the  con- 


112  SPECIFICATIONS    AND    CONTRACTS. 

struction  of  the  railway  and  viaduct,  they  shall  terminate  their 
contract  with  the  Company  and  shall  receive  for  so  doing  a  further 
payment  of  ten  thousand  dollars  ($10,000.00).  But  should  they  be 
retained  on  the  viaduct  and  not  on  the  railway,  this  ten-thousand- 
dollar  ($10,000.00)  payment  is  to  be  reduced  in  the  proportion  that 
the  estimated  cost  of  the  railway  bears  to  the  estimated  cost  of  the 
railway  and  viaduct. 

If,  after  the  Company  gives  formal  orders  to  the  Engineers  to 
proceed  with  the  preparation  of  plans  to  submit  to  contractors  for 
tendering,  the  project  should  be  abandoned,  the  Engineers  are  to  be 
paid  in  full  for  all  work  done  up  to  date,  plus  one-half  of  the  balance 
of  their  estimated  total  fee. 

Draft  the  contract  between  the  Company  and  the  Engineers  for 
the  above  "Conditions  Precedent." 

CASE  NO.  2. 

Viaduct  The  Engineers  of  the  Capital   Rapid  Transit   Company    (men- 

tioned in  Case  No.  1)  have  prepared  plans  and  specifications  for  the 
proposed  viaduct  and  have  called  for  bids  thereon  at  schedule  rates 
for  excavation  and  for  all  the  various  materials  in  place,  with  the 
result  that  the  Virginia  Bridge  Company,  a  corporation  of  the  State 
of  West  Virginia,  and  having  headquarters  at  Wheeling,  W.  Va.,  has 
submitted  the  most  satisfactory  tender,  their  bid  being  as  follows: 

For  excavation,  including  back-filling,  one  dollar  and  sixty 
cents  ($1.60)  per  cubic  yard. 

For  piles  in  place,  sixty-two  cents  (62c.)  per  lineal  foot,  no 
allowance  being  made  for  the  ends  cut  off. 

For  substructure  concrete  in  place,  nine  dollars  and  forty  cents 
($9.40)  per  cubic  yard. 

For  superstructure  metal  (excluding  hand-rails,  railway  rails 
and  trolley-poles),  erected  and  painted,  four  and  two-tenths  cents 
(4.2c.)  per  pound. 

For  reinforced  concrete  to  support  the  pavement,  exclusive  of 
the  reinforcing  bars  which  are  to  be  paid  for  as  superstructure 
metal,  ten  dollars  and  fifty  cents  ($10.50)  per  cubic  yard. 

For  asphalt  pavement,  including  a  ten-year  guarantee  for  repairs, 
one  dollar  and  fifteen  cents  ($1.15)  per  square  yard. 

.For  hand-rails  in  place,  two  dollars  and  thirty  cents  ($2.30)  per 
lineal  foot  of  hand-rail. 

For  railway  rails  in  place,  including  bonding,  one  dollar  and 
twenty-five  cents  ($1.25)  per  lineal  foot  of  single  track. 


SPECIFICATIONS    AND    CONTRACTS.  113 

For  drainage  down-spouts  in  place,  ten  cents  (lOc.)  per  lineal 
foot  of  down-spout. 

The  trolley-poles  and  the  trolley-line  are  not  to  be  included  in 
this  contract. 

The  entire  work  is  to  be  completed  within  seven  (7)  months 
from  the  date  of  signing  the  contract,  under  a  forfeit  of  fifty  dollars 
($50.00)  per  day,  which  forfeit  has  not  been  mentioned  in  the 
specifications  that  are  to  form  a  part  of  the  contract. 

The  schedule  prices  to  be  adopted  in  making  partial  payments 
for  all  work  as  it  progresses  are  to  be  determined  by  the  Engineer. 

The  amount  of  bond  required  is  forty  thousand  dollars 
($40,000.00). 

Draft  the  contract  between  the  Company  and  the  Contractor  for 
the  preceding  conditions. 

CASE  NO.  3. 

The  Kansas  City  Southwestern  Railway  Company,  a  corporation  Replacing  Bridge 
of  the  State  of  Missouri,  being  desirous  of  replacing  four  (4)  old 
and  seriously  overloaded,  single-track,  steel  spans  of  two  hundred 
(200)  feet  each,  at  four  (4)  different  places  on  the  line  of  its  road, 
has  had  four  (4)  new,  riveted,  through  spans  manufactured  by  the 
Pennsylvania  Steel  Company,  all  the  metal  for  which  spans,  includ- 
ing an  ample  supply  of  rivets  and  pilot  nuts  for  driving  the  pedestal 
pins,  is  to  be  delivered  by  April  15,  1906,  at  a  certain  point  on  the 
line  of  the  Company's  railway;  and  has  had  its  Consulting  Engineers 
call  for  bids  for  the  erection  of  the  said  metal  and  for  the  furnish- 
ing and  putting  in  place  of  the  deck-timbers  and  for  laying  the 
rails  that  are  furnished  by  the  Railway  Company,  the  Contractor 
having  to  furnish  and  put  in  place  falsework  strong  enough  to 
carry  safely  the  passing  trains,  and  having  to  take  down,  mark,  and 
store  the  metal  of  the  old  spans. 

The  Central  Bridge  Company,  of  Kansas  City,  Mo.,  a  corporation 
of  the  State  of  Missouri,  made  the  most  satisfactory  tender,  which 
was  as  follows: 

For  falsework  in  place,  strong  enough  to  carry  safely  the  Com- 
pany's trains,  seven  dollars  and  twenty-five  cents  ($7.25)  per  lineal 
foot  of  structure. 

For  taking  down,  marking,  and  storing  the  metal  of  the  old 
spans  according  to  the  directions  of  the  Engineer,  two  dollars  and 
eighty  cents  ($2.80)  per  lineal  foot  of  structure  removed. 

For  erecting  and  painting  the  new  metal-work  of  the  super- 
structure, eight-tenths  of  a  cent  (0.8c.)  per  pound. 


114  SPECIFICATIONS    AND    CONTRACTS. 

For  furnishing  and  putting  in  place  the  timber  for  the  decks, 
thirty-five  dollars  ($35.00)  per  M.  feet  B.  M. 

For  laying  rails,  fifteen  cents  (15c.)  per  lineal  foot  of  single 
track. 

Provided  that  the  metal  is  delivered  at  the  bridge-sites  by  May 
1,  1906,  the  last  of  the  four  spans  is  to  be  completed  and  ready  for 
traffic  by  October  1,  1906;  and  in  case  of  delay  in  the  delivering  of 
the  said  metal,  the  time  for  completion  is  to  be  properly  extended. 

The  Contractor  will  not  be  allowed  to  interfere  with  the  passage 
of  any  passenger  train  more  than  one  hour  or  with  that  of  any 
freight  train  more  than  two  (2)  hours,  unless  special  written  per- 
mission to  the  contrary  be  given  by  the  Company. 

The  schedule  prices  for  partial  payments  on  the  work  as  it 
progresses  are  to  be  determined  by  the  Engineer. 

A  bond  of  twenty-five  thousand  dollars  ($25,000.00)  will  be 
required  as  a  guarantee  that  the  Contractor  will  comply  with  all  the 
requirements  of  the  specifications  and  contract. 

The  forfeiture  for  non-completion  of  the  work  on  time  shall  be 
fifty  dollars  ($50.00)  per  day  per  span;  but  this  forfeiture  shall  not 
be  exercised  by  the  Company  unless  the  Engineer  deem  that  such 
enforcement  is  just  and  called  for  by  either  the  Contractor's  wilful 
delay  or  the  Company's  actual  loss. 

Draft  a  contract  between  the  Railway  Company  and  the  Con- 
tractor for  the  preceding  conditions,  taking  special  care  to  protect 
the  Company  against  detention  or  wreckage  of  trains. 

CASE  NO.  4. 

Promoters'  Agree-  TWO  engineers  of  New  York  City,  John  Brown  and  James  Smith, 

desire  to  enter  into  a  contract  to  prosecute  a  general  engineering 
practice,  starting  on  January  1,  1907. 

Brown  is  the  better  situated  financially,  consequently  he  is  to 
advance  ten  thousand  dollars  ($10,000.00)  to  the  firm  as  a  working 
capital  and  is  to  receive  six  (6)  per  cent,  interest  on  it,  but  each 
year  Smith  must  put  one  thousand  dollars  ($1,000.00)  of  his  share 
of  the  net  earnings  of  the  firm  into  the  working  fund,  and  Brown 
is  to  draw  out  annually  a  like  amount  until  their  two  deposits  are 
equalized,  Brown  receiving  each  year  six  per  cent,  on  the  excess  of 
his  deposit  over  that  of  Smith. 

For  the  first  year  Brown  is  to  receive  seventy-five  (75)  per  cent, 
of  the  total  net  profits  and  Smith  twenty-five  (25)  per  cent.,  and  each 
yes,r  Brown's  share  is  to  decrease  five  (5)  per  cent,  and  Smith's  is 


SPECIFICATIONS    AND    CONTRACTS.  115 

to  increase  that  amount  until  the  division  becomes  equal.  But 
should  Smith  fail  for  any  year  to  deposit  his  one  thousand  dollars 
($1,000.00),  no  increase  for  that  year  will  be  allowed  him;  but  the 
next  year  he  shall  have  the  privilege  of  depositing  two  thousand 
dollars  ($2,000.00)  and  receiving  an  increase  of  ten  (10)  per  cent. 
In  case  of  failure  for  two  consecutive  years  to  deposit  the  amount 
agreed  upon,  Smith  shall  not  have  'the  privilege  of  depositing  three 
thousand  dollars  ($3,000.00)  at  once  and  claiming  an  increase  of 
fifteen  (15)  per  cent,  but  the  amount  of  his  deposit  at  any  one  time 
shall  be  limited  to  two  thousand  dollars  ($2,000.00),  and  his  corre- 
sponding increase  in  percentage  shall  be  limited  to  ten  (10). 
Should  the  business  of  the  firm  run  so  low  in  any  year  that  Smith's 
iShare  of  the  net  profits  is  less  than  twelve  hundred  dollars 
($1,200.00),  Brown  out  of  his  private  funds  shall  pay  Smith  the 
difference  between  twelve  hundred  dollars  ($1,200.00)  and  Smith's 
said  share. 

At  the  outset  the  entire  equipment  of  the  office,  valued  at  five 
thousand  dollars  ($5,000.00),  is  to  be  furnished  by  Brown,  and  any 
additional  equipment  required  from  time  to  time  is  to  be  paid  for 
cut  of  the  office  earnings;  and  when  the  partnership  is  placed  upon 
an  equal  basis,  Smith  shall  pay  Brown  twenty-five  hundred  dollars 
($2,500.00),  with  interest  thereon  at  six  (6)  per  cent,  from  the  date 
of  the  forming  of  the  partnership  until  that  of  the  equalization,  after 
which  Smith  shall  be  a  half-owner  in  all  of  the  office  equipment. 
Before  the  partnership  is  equalized  Brown  may  dissolve  it  at  any 
time  by  giving  Smith  six  (6)  months'  notice  in  writing  and  paying 
him  one  thousand  dollars  ($1,000.00)  and  his  regular  share  of  the 
net  profits  on  all  unfinishd  work,  Smith  having  the  option  of  taking 
at  once  in  cash  the  amount  of  the  said  net  profits  as  estimated  by 
Brown  or  of  waiting  for  the  completion  of  the  said  unfinished  work 
and  receiving  then  his  exact  share  of  the  said  net  profits. 

Smith  may  terminate  the  contract  at  any  time  by  giving  Brown 
six  (6)  months'  written  notice  and  waiving  all  claim  to  profits  on 
unfinished  work;  but  should  he  fail  to  give  the  six  months'  notice, 
he  is  to  pay  Brown  five  hundred  dollars  ($500.00)  for  his  failure 
to  do  so. 

In  the  event  of  the  death  of  either  of  the  partners,  the  survivor 
shall  finish  all  business  uncompleted  at  the  time  of  the  said  death, 
and  shall  turn  over  to  the  estate  of  his  deceased  partner  that 
partner's  share  of  the  net  profits  on  such  unfinished  business,  figured 
.according  to  the  rate  of  division  ruling  at  the  time  of  said  death. 


116 


SPECIFICATIONS    AND    CuNTRACTS. 


(employment 


Promoter's   Agree- 
ment 


In  case  of  Smith's  death  before  the  formation  of  the  equal  part- 
nership his  estate  shall  have  no  claim  against  Brown  for  any  share 
of  the  office  equipment;  but  in  case  that  his  death  occur  after  the 
formation  of  the  equal  partnership  Brown  shall  pay  to  his  estate 
one-half  of  the  value  of  the  said  outfit  as  appraised  by  three 
arbitrators. 

In  case  of  Brown's  death  before  the  formation  of  the  equal 
partnership,  Smith  shall  have  the  right  to  purchase  the  entire  office 
equipment  by  paying  to  Brown's  estate  the  sum  of  five  thousand 
dollars  ($5,000.00);  but  if  Brown's  death  occur  after  the  formation 
of  the  equal  partnership,  Smith  must  pay  to  his  estate  one-half  of 
the  appraised  value  of  the  said  equipment. 

Draft  the  contract  between  the  two  partners  upon  the  preceding 
basis. 

CASE  NO.  5. 

Augustus  Hurlburt,  of  Lexington,  Mo.,  a  man  of  some  means,  has 
conceived  the  idea  of  building  a  toll  bridge  over  the  Missouri  River 
at  his  city,  and  desires  to  engage  the  services  of  Henry  Jones,  a  civil 
engineer,  of  St.  Louis,  Mo.,  who  makes  a  specialty  of  bridgework,  to 
assist  in  the  financing  of  the  enterprise  and  to  do  all  the  engineering 
work  required  from  start  to  finish.  As  Jones  is  without  means, 
Hurlburt  is  to  furnish  all  the  cash  required  to  materialize  the  project, 
but  Jones  is  to  receive  no  personal  compensation  until  the  enter- 
prise is  financed,  after  which  he  is  to  get  a  net  fee  of  two  and  one- 
half  (2.5)  per  cent,  of  the  grand  total  cost  of  the  entire  structure, 
payable  monthly  proportionately  to  the  value  of  the  work  done  on 
actual  construction.  In  addition  to  this  he  is  to  receive  twenty  (20) 
per  cent,  of  whatever  portion  of  the  bridge  Company's  stock  that 
Hurlburt  has  been  able  to  retain  in  making  his  agreement  with  the 
capitalists. 

Draft  an  agreement  between  the  two  parties  on  the  above 
basis  and  define  carefully  what  each  party  is  to  do  from  start  to 
finish. 

CASE  NO.  6. 

William  Simpson,  a  promoter,  has  developed  a  project  for 
building  a  concrete  dam  across  Arapahoe  Creek,  in  Colorado,  and 
irrigating  thereby  a  large  tract  of  land.  He  has  organized  a  stock 
company  in  Colorado  and  called  it  the  Arapahoe  Irrigation  and 
Development  Company,  the  amount  of  the  capital  stock,  for  the 
purpose  of  organization  only,  having  been  fixed  at  ten  thousand 
dollars  ($10,000.00). 


SPECIFICATIONS    AND    CONTRACTS.  117 

To  build  the  dam  and  to  purchase  about  one-half  of  the  land 
to  be  irrigated  will  require  cash  to  the  amount  of  two  million,  five 
hundred  thousand  dollars  ($2,500,000.00),  including  a  fair  profit  on 
the  construction  and  purchase.  He  desires  to  expand  his  organiza- 
tion by  increasing  his  capital  stock  to  three  million  dollars 
($3,000,000.00),  issuing  bonds  to  that  amount,  and  disposing  of  as 
many  of  these  securities  as  is  necessary  to  raise  the  two  and  one- 
half  million  dollars  ($2,500,000.00)  in  cash. 

He  takes  the  project  to  the  New  York  bankers,  Messrs.  Fish  & 
Robbins,  who  agree  to  undertake  the  underwriting  of  the  bonds  and 
to  subscribe  liberally  themselves.  The  bonds  are  to  bear  five  (5) 
per  cent,  interest,  and  the  lowest  figure  at  which  they  are  to  be  sold 
is  eighty-five  cents  (85c.)  on  the  dollar.  Fish  &  Robbins  are  to 
make  a  portion  of  their  profit  on  the  sale  of  the  bonds  at  some  higher 
figure  than  this.  Simpson  is  to  retain  fifty-five  (55)  per  cent,  of 
the  capital  stock,  and  the  remaining  forty-five  (45)  per  cent,  is  to 
be  turned  over  to  Fish  &  Robbins,  who  will  part  with  as  little  as 
they  can  when  getting  the  bonds  underwritten,  and  will  retain  the 
balance  as  profit. 

Fish  &  Robbins  also  agree  to  advance  money  at  six  (6)  per  cent, 
interest  from  time  to  time  to  Simpson  up  to  a  limit  of  three  hundred 
thousand  dollars  ($300,000.00),  in  order  to  enable  him  to  carry  on 
the  work  of  construction  and  to  make  the  first  payments  on  lands 
purchased.  For  this  loan  they  are  to  have  a  one-quarter  interest  in 
Simpson's  profit  on  the  purchase  of  land  and  construction  of  dam 
and  irrigating  ditches;  for  it  is  Simpson's  intention  to  do  all  the 
construction  himself  and  to  purchase  land  that  will  lie  under  the 
ditch  as  cheaply  as  he  can  and  turn  it  over  to  his  Company  at  ten 
dollars  ($10.00)  per  acre.  This  arrangement  is  to  be  well  under- 
stood in  advance  by  all  parties  interested  in  the  project.  To  the 
owners  of  the  remaining  land  lying  under  the  ditch  the  Company 
will  later  on  sell  water  privileges  at  as  high  a  price  as  it  can  obtain. 
The  Company  will  begin  by  farming  some  of  its  own  lands,  and  by 
leasing  others  to  farmers,  with  the  intention  of  ultimately  selling 
all  its  lands  at  a  great  profit  and  furnishing  water  for  them  at  a 
fair  price. 

The  underwriters  are  to  advance  money  on  the  bonds  upon 
certificates  of  an  engineer  appointed  by  them  to  supervise  the  work, 
stating  that  certain  lands  have  been  purchased  and  paid  for  in  full, 
and  that  actual  work  to  the  value  of  the  amounts  indicated  has  been 
done,  including  a  proper  profit  for  the  Contractor.  In  other  words, 


118  SPECIFICATIONS    AND    CONTRACTS. 

the  subscribers  to  the  bonds  will  advance  money  only  for  an  equiva- 
lent cash  expenditure  for  work  or  land. 

The  entire  engineering  is  to  be  done  by  and  under  the 
Engineer  appointed  by  the  underwriters;  but  the  complete  detailed 
plans  and  specifications  are  to  be  agreed  to  by  Simpson,  the  Arapahoe 
Irrigation  and  Development  Company,  and  the  underwriters 
(through  their  Engineer  and  a  special  committee)  before  any  money 
is  advanced  for  construction  or  purchase. 

Because  of  this  arrangement  Simpson  will  have  to  advance  out 
of  his  own  pocket  whatever  money  is  necessary  for  the  preliminary 
engineering  work  and  for  the  preparation  of  the  plans  and  specifica- 
tions; but  the  amount  of  such  expenditure  is  to  be  refunded  to  him 
just  as  soon  as  the  final  contract  is  entered  into  between  the  Com- 
pany and  the  underwriters.  All  engineering  expenses  are  to  be 
borne  by  the  Company,  and  are  to  be  considered  a  part  of  the 
construction  expense. 

Simpson  is  to  be  paid  by  the  Company  for  his  work  at  the 
following  rates: 

For  the  concrete  foundations  of  dam  below  ordinary  water- 
level,  as  determined  in  advance  by  the  Engineer,  including  the 
necessary  excavation  and  back-filling,  twenty-two  dollars  ($22.00) 
per  cubic  yard. 

For  the  remaining  concrete  of  the  dam  and  for  all  other  concrete 
work  on  the  entire  job,  fourteen  dollars  ($14.00)  per  cubic  yard. 

For  cast-iron  pipe  in  place,  including  the  lead  calking  of  the 
joints,  five  and  two-tenths  cents  (5.2c.)  per  pound  of  pipe. 

For  steel  gates  and  other  steel  constructions  in  place,  six  cents 
(6.0c.)  per  pound. 

For  timber  of  flumes,  trestles,  and  other  constructions  in  place, 
fifty-five  dollars  ($55.00)  per  M.  feet  B.  M. 

For  all  earthwork,  measured  in  excavation,  excepting  only  the 
excavation  for  the  base  of  the  dam,  thirty-three  cents  (33c.)  per 
cubic  yard,  provided  the  haul  does  not  exceed  five  hundred  (500) 
feet. 

For  overhaul  of  earthwork,  one  cent  per  cubic  yard  for  each 
one  hundred  (100)  feet  of  haul  exceeding  five  hundred  (500)  feet. 

For  all  other  materials  or  work  not  included  in  this  list,  actual 
cash  cost,  plus  fifteen  (15)  per  cent,  for  profit. 

Upon  the  preceding  hypotheses  the  student  will  please  draft 
the  following  papers: 

A. — Contract  between  Simpson  and  Fish  &  Robbins. 


SPECIFICATIONS    AND    CONTRACTS.  119 

B. — Contract  between  Simpson  and  the  Arapahoe  Irrigation  and 
Development  Company. 

C. — Contract  between  the  Arapahoe  Irrigation  and  Development 
Company  and  the  underwriters. 

CASE  NO.  7. 

Rufus  Thompson,  hydraulic  engineer  and  contractor,  of  Minne-    Promoter's  Agree- 
ment 
apolis,  Minn.,  has  developed  a  project  for  building  a  complete  system 

of  water-supply  and  sewerage  for  the  City  of  Hiawatha,  Wis.,  and 
has  entered  into  a  provisional  contract  with  that  city,  according  to 
which  it  is  to  pay  a  certain  lump  sum  for  the  sewerage  system  and 
certain  hydrant  rentals  for  city  water,  and  is  to  give  to  the  com- 
pany that  Mr.  Thompson  has  organized  the  exclusive  privilege  for 
thirty  (30)  years  of  supplying  the  citizens  of  the  said  city  of 
Hiawatha  with  water.  The  construction  of  the  entire  system  of 
water-works  and  sewerage  is  to  be  subject  to  the  inspection  and 
acceptance  of  the  City  Engineer  of  Hiawatha,  who  will  act  as  Con- 
sulting Engineer  on  the  work. 

A  liberal  estimate  of  the  entire  cash  cost  of  the  water-supply 
and  sewerage  systems  proposed  is  one  million,  two  hundred  thousand 
dollars  ($1,200,000.00). 

Mr.  Thompson  has  already  organized  under  the  laws  of  the 
State  of  Wisconsin,  for  the  sole  purpose  of  materializing  this  project, 
the  Hiawatha  Water-Supply  and  Sewerage  Company,  the  amount 
of  the  capital  stock  being  fixed  at.  first  at  twenty  thousand  dollars 
($20,000.00),  with  the  intention  of  increasing  it  later  to  one  million, 
five  hundred  thousand  dollars  ($1,500,000.00)  and  bonding  the 
property  to  a  like  amount. 

Mr.  Thompson  has  taken  the  project  to  the  New  York  bankers, 
Solomon,  Lowenstein  &  Co.,  who  have  agreed  to  underwrite  the 
bonds  to  the  amount  of  six  hundred  thousand  dollars  ($600,000.00) 
and  to  assume  the  underwriting  of  the  remainder.  The  bonds  are 
to  be  sold  to  Solomon,  Lowenstein  &  Co.,  at  eighty-two  cents  (82c.) 
on  the  dollar,  and  they  are  to  obtain  as  much  higher  a  price  as  they 
can  when  dealing  with  the  other  underwriters.  Solomon,  Lowenstein 
&  Co.  are  to  part  with  as  little  as  possible  of  the  capital  stock  of 
the  Company  when  dealing  with  the  other  underwriters,  in  no  case 
giving  more  than  forty  dollars  ($40.00)  in  stock  with  each  one 
hundred  dollars  ($100.00)  in  bonds;  but  with  their  own  purchase  of 
six  hundred  thousand  dollars  ($600,000.00)  of  bonds  they  are  to 
receive  three  hundred  thousand  dollars  ($300,000.00)  in  stock. 


120  SPECIFICATIONS    AND    CONTRACTS. 

After  the  entire  bond  issue  has  been  subscribed,  whatever  stock 
has  been  left  over  is  to  be  divided  between  Mr.  Thompson  and  the 
bankers  in  the  ratio  of  two-thirds  (%)  to  the  former  and  one-third 
(%)  to  the  latter;  but  all  the  stock  controlled  by  the  said  Thompson 
and  the  said  bankers  is  to  be  pooled  or  held  in  trust  for  a  term  of 
ten  (10)  years,  or  until  such  a  time  as  the  Company  has  declared 
two  (2)  successive  annual  dividends  of  not  less  than  six  (6)  per 
cent,  on  the  entire  capital  stock. 

The  trustees  for  the  pool  are  to  be  Mr.  Thompson  and  Mr. 
Lowenstein,  and  their  headquarters  as  trustees  are  to  be  in  the 
New  York  office  of  Solomon,  Lowenstein  &  Co. 

Mr.  Thompson  is  to  be  retained,  if  possible,  as  Chief  Engineer 
of  the  enterprise,  and  is  to  be  paid  by  the  Company  for  his  services 
and  for  those  of  his  assistants  in  doing  the  entire  engineering, 
inspection,  and  superintendence  of  construction  five  (5)  per  cent, 
of  the  total  cost  of  the  completed  work,  including  right  of  way  and 
all  other  legitimate  items  of  expense. 

Should,  however,  the  services  of  Mr.  Thompson  be  objectionable 
to  the  underwriters,  who  may  desire  to  appoint  an  engineer  of  their 
own,  Mr.  Thompson  is  not  to  be  made  the  Chief  Engineer,  but  in 
lieu  of  such  an  appointment  is  to  receive  from  Solomon,  Lowenstein 
&  Co.  either  twenty-five  thousand  dollars  ($25,000.00)  in  cash,  or 
one  hundred  and  twenty  thousand  dollars  ($120,000.00)  in  the  stock 
of  the  Company,  at  his  option. 

Draft  the  contract  between  the  promoter  and  the  bankers  upon 
the  basis  just  indicated. 

Draft  also  a  contract  between  the  Company  and  Mr.  Thompson 
for  the  engineering  work. 

CASE  NO.  8. 

Ocean  Pier  The  Mexican  Transcontinental  Railway  Company,  a  corporation 

of  the  Republic  of  Mexico,  having  headquarters  at  Mexico  City, 
desires  to  let  a  contract  for  an  ocean  pier  to  be  built  in  the  harbor 
of  Vera  Cruz,  Mexico,  and  has  had  prepared  complete  detail  plans 
and  specifications  by  its  Consulting  Engineers  ready  for  both  letting 
the  contract  and  actual  construction.  The  Consulting  Engineers' 
estimated  total  cost  of  the  finished  structure,  exclusive  of  the 
engineering  fee,  is  two  hundred  and  five  thousand  dollars 
($205,000.00). 

Bids  have  been  called  for,  but  owing  to  the  almost  constant 
presence  of  yellow  fever  in  Vera  Cruz  none  of  the  bidders  was  will- 


SPECIFICATIONS    AND    CONTRACTS.  121 

ing  to  name  a  lump  sum  for  the  work  at  all  near  the  Engineers' 
estimate. 

The  lowest  bidder  was  the  Central  Bridge  Company,  of  Kansas 
City,  Mo.,  who  asked  two  hundred  and  sixty  thousand  dollars 
($260,000.00)  for  the  work,  but  stated  in  their  tender  that  they  would 
be  willing  to  undertake  the  contract  at  actual  cash  cost,  plus  twenty 
(20)  per  cent,  for  profit. 

A  conference  between  the  Consulting  Engineers  and  the  pro- 
prietors of  the  bridge  company  resulted  in  the  following  compro- 
mise, which  was  submitted  to  the  President  of  the  Railway  Company 
and  accepted  by  him: 

The  Contractors  are  to  furnish  free  of. charge  all  the  plant 
necessary  to  build  the  pier,  and  no  allowance  is  to  be  made  for 
either  its  use  or  for  its  deterioration  while  employed  on  the  work; 
but  the  cost  of  the  repairs  to  it  during  construction  is  to  be  con- 
sidered as  a  portion  of  the  cost  of  the  work,  and  is  to  be  allowed 
lor  in  the  Engineers'  monthly  estimates. 

The  Contractor  is  to  be  paid  the  actual  cost  of  the  entire  work, 
including  freight  on  materials  and  plant  to  Vera  Cruz  and  freight 
on  plant  back  to  Kansas  City,  plus  seventeen  (17)  per  cent,  on  the 
said  entire  cost  as  profit,  provided  that  the  total  amount  of  the  said 
profit  does  not  exceed  thirty-two  thousand  dollars  ($32,000.00). 

All  items  of  labor,  materials,  transportation  of  men,  materials, 
and  plant  between  the  United  States  and  Vera  Cruz,  traveling 
expenses  of  the  Contractors  and  of  their  salaried  employees,  insur- 
ance of  every  kind  on  men,  plant,  and  materials  that  it  is  customary 
for  American  contractors  to  pay  when  doing  similar  work  in 
foreign  countries,  stamps  for  documents,  and  taxes  of  all  kinds 
shall  be  considered  as  legitimate  expenses  and  shall  be  allowed  by 
the  Engineers.  As  the  structure  is  located  in  the  city,  the  workmen 
will  have  to  find  board  and  lodgings  for  themselves,  unless  the  Con- 
tractors desire  to  house  and  board  the  men,  which  they  are  at 
liberty  to  do  as  their  own  private  venture. 

The  Company  will  not  allow  any  sick  or  incapacitated  men  to  be 
kept  on  the  pay-roll,  except  by  written  permission  of  the  Engineers 
for  men  who  have  been  hurt  on  the  work  and  who  are  willing  to 
waive  in  writing  all  claims  for  damages,  provided  they  are  kept  on 
the  pay-roll  until  well  enough  to  resume  work. 

The  Company  will  not  pay  for  any  medical  attendance,  medicine, 
or  hospital  charges  for  their  Contractors  or  any  of  their  employees; 
and  on  this  account  the  Contractors  are  at  libsrty  to  enter  into 


122  SPECIFICATIONS    AND    CONTRACTS. 

contract  with  all  the  workmen  whom  they  send  from  the  United 
States,  or  with  European  or  American  workmen  engaged  in  Mexico 
to  insure  them  against  illness  (in  any  way  that  seems  best  to  the 
Contractors)  by  deducting  a  certain  fixed  percentage  from  all  the 
said  workmen's  wages;  but  this  arrangement  shall  not  apply  in  the 
case  of  Mexican  workmen. 

The  decision  as  to  what  is  and  what  is  not  "Plant"  is  to  be  left 
entirely  to  the  Engineers,  the  intent  being  to  class  as  materials  for 
the  work  everything  that  is  likely  to  be  used  up  or  expended 
thereon,  and  to  class  as  plant  that  part  of  the  Contractors'  working 
outfit  that  will  be  worth  returning  to  the  United  States  after  the  pier 
is  finished.  • 

The  Engineers'  estimates  are  to  be  made  in  American  money, 
but  according  to  the  laws  of  Mexico  the  Contractors'  accounts  must 
be  kept  in  Mexican  currency.  The  rate  of  exchange  to  be  used  by 
the  Engineers  in  reducing  Mexican  to  American  currency  shall  be 
that  ruling  in  the  City  of  Mexico  on  the  date  of  the  estimate. 

The  number  of  men  employed  and  their  salaries  or  wages  shall 
be  subject  to  the  approval  of  the  Engineers,  who  shall  also  convince 
themselves  of  the  men's  fitness  for  the  work. 

The  Engineers  are  to  approve  of  the  Contractors'  plant  before 
work  is  started,  and  shall  order  more  to  be  supplied  if  subsequent 
developments  show  that  it  is  necessary. 

The  Engineers  are  to  approve  of  all  materials  purchased  by  the 
Contractors  for  use  on  the  work;  and  all  expense  bills  are  to  be 
vouchered  before  being  presented  for  approval. 

All  pay-rolls  are  to  ba  signed  by  the  payees  in  the  presence  of 
a  duly  authorized  representative  of  the  Engineers,  and  two  copies 
thereof  are  to  be  made  and  attested  by  a  notary. 

The  Company  shall  not  be  held  liable  for  the  failure  of  the 
Contractors  to  comply  with  any  of  the  Mexican  laws,  especially  those 
relating  to  the  stamping  of  documents. 

Owing  to  the  high  rates  charged  by  the  casualty  insurance  com- 
panies on  work  done  in  Mexico,  the  Company  will  itself  insure  the 
Contractors  against  accidents,  but  the  latter  must  report  all  casual- 
ties immediately  in  writing  to  the  Engineers  and  to  the  President  of 
the  Company.  Minor  accidents  are  to  bs  settled  for  as  quickly  as 
possible  by  the  Contractors  after  consultation  with  the  local  repre- 
sentative of  the  Engineers  and  after  receiving  his  approval;  but  no 
individual  settlement  exceeding  two  hundred  dollars  ($200.00)  in 


SPECIFICATIONS    AND    CONTRACTS.  123 

gold  shall  be  made  without  special  written  permission  from  the 
Company. 

The  Contractor  is  to  provide  a  bond  of  fifty  thousand  dollars 
($50,000.00)  gold;  but  the  Company  will  allow  the  premium  thereon 
to  go  into  the  Engineers'  estimates  as  a  part  of  the  cost  of  the  work. 

Draft  a  contract  between  the  Company  and  the  Contractors  to 
meet  all  the  preceding  conditions  and  any  other  conditions  that 
ought  to  be  covered  in  such  a  document. 

CASE  NO.  9. 

Assuming  the  conditions  given  in  the  last  case,  draft  a  contract    Contract  for  Services 
between  the  Engineers,  Walters  &  Hendricks,  of  Philadelphia,  and 
the  Railway  Company  so  as  to  cover  all  the  peculiar  conditions  of 
the  case,  as  well  as  all  the  usual  conditions  included  in  contracts 
for  doing  engineering  work  in  the  United  States. 

The  payments  to  the  Engineers  are  to  be  in  American  money 
as  follows: 

For  complete  detailed  plans  and  specifications,  six  thousand 
dollars  ($6,000.00). 

,For  inspection  of  metal-work  at  mills  and  shops  and  for  super- 
vising the  loading  of  it  on  vessel  and  unloading  it  at  Vera  Cruz, 
also  for  the  checking  of  shop-drawings,  one  dollar  and  fifty  cents 
($1.50)  per  ton. 

For  supervision  of  construction  in  the  field,  the  actual  total 
cash  cost  thereof  to  the  Engineers,  including  all  the  traveling 
expenses  to  and  fro,  plus  a  lump  sum  of  two  thousand  dollars 
($2,000.00). 

The  pier  to  be  designed  is  to  be  five  hundred  (500)  feet  long 
and  seventy-five  (75)  feet  wide.  ' 

The  deck  is  to  consist  of  six  (6) -inch  creosoted  planks  supported 
by  rolled  I-beam  stringers  and  cross-girders  resting  on  screw-piles. 
There  are  to  be  two  railroad  tracks  at  the  middle  of  the  structure 
extending  over  its  whole  length.  The  live  load  per  square  foot  of 
floor  is  to  be  taken  at  four  hundred  (400)  pounds. 

CASE  NO.  10. 

Joseph  Mason,  a  railroad  contractor  of  Tombstone,  Ariz.,   has   Syndicate 
conceived   the   project   of   building   a   railroad   about   ninety   miles 
long  to  the  Alvarado  Mine,  which  has  lately  been  opened  and  which 
shows  great  quantities  of  low-grade  ore  that  would  have  to  be  trans- 
ported to  Tombstone  on  the  way  to  a  smelter.    The  line  projected 


124  SPECIFICATIONS    AND    CONTRACTS. 

by  Mason's  reconnaissance  would  pass  near  several  high-grade  mines 
and  several  large  ranches,  from  all  of  which  business  for  the  railroad 
could  be  obtained.  In  addition  to  this  there  would  probably  be 
other  business  from  new  mines  that  would  undoubtedly  be  opened 
and  from  other  ranches  that  would  be  located  close  to  the  railroad. 

Mr.  Mason  has  called  in  Adolf  Macklin,  a  railroad  engineer  of 
Tombstone,  and  Arnold  Potter,  of  Phoenix,  Ariz.,  who  has  been 
successful  in  launching  several  large  construction  projects  in  that 
territory,  to  aid  him  in  the  materialization  of  the  project. 

These  three  parties  constitute  what  may  be  termed  the 
"Promotion  Syndicate." 

The  arrangement  between  the  members  of  the  Syndicate  is  that 
Macklin  is  to  survey  the  route,  make  plans,  profile,  estimate  of 
cost,  and  complete  specifications  for  letting  the  contract,  and  prepare 
a  prospectus  to  submit  to  capitalists,  all  at  the  expense  of  Mason; 
but  Macklin  himself  is  to  receive  no  salary. 

A  stock  company  is  then  to  be  formed  at  Mason's  expense,  the 
amount  of  the  capital  stock  at  the  outset  being  limited  to  ten  thou- 
sand dollars  ($10,000.00),  consisting  of  one  thousand  (1,000)  shares 
of  ten  dollars  ($10.00)  each.  With  the  exception  of  one  share  for 
each  of  the  other  incorporators  of  the  Company,  Mason  is  to  hold 
in  his  own  name  all  of  the  stock  until  the  project  is  about  to  be 
financed,  when  other  arrangements  will  be  made. 

After  the  Engineer's  preliminary  work  is  done,  the  members  of 
the  Syndicate  are  to  determine  a  proper  contract  price  per  mile  of 
road  for  building  and  equipping  it  complete,  allowing  an  estimated 
profit  of  twenty  (20)  per  cent;  and  Mason  is  to  take  the  contract 
for  building  the  entire  road  at  these  figures  after  the  necessary 
capital  is  raised. 

Macklin  is  to  have  the  contract  for  all  the  engineering  work 
from  start  to  finish,  is  to  pay  every  expense  connected  therewith, 
and  is  to  receive  as  his  gross  compensation  one  thousand  dollars 
($1,000.00)  per  mile  of  main  lice  and  five  hundred  dollars  ($500.00) 
per  mile  for  sidings  and  branch  lines,  provided  that  the  project  is 
materialized. 

If  it  is,  Macklin  is  to  refund  to  Mason  out  of  the  engineering 
fee  one-half  of  the  total  cost  of  the  entire  work  involved  in  making 
the  surveys,  plans,  profiles,  estimates,  and  prospectus. 

Potter  is  to  make  what  commission  he  can  out  of  the  bankers. 
In  dealing  with  the  latter  the  Syndicate  is  to  reserve  for  its  members 
as  much  as  possible  of  the  capital  stock,  and  what  is  saved  is  to  b» 


SPECIFICATIONS    AND    CONTRACTS.  125 


divided  among  them  on  the  basis  of  one-half  (%)  to  Potter  and 
one-quarter  (^)  each  to  Mason  and  Macklin. 

As  soon  as  everything  is  ready  to  submit  to  bankers,  Potter  and 
Macklin  are  to  make  a  trip  at  Mason's  expense  to  some  of  the 
principal  money  centers  of  the  country,  and  are  to  use  every  legiti- 
mate endeavor  to  float  the  enterprise,  and  are  to  continue  their 
work  until  either  success  is  attained  or  the  expenses  of  their  trip 
amount  to  six  thousand  dollars  ($6,000.00),  after  which  it  is  to  be 
optional  with  Mason  as  to  whether  they  shall  continue  their  efforts 
or  abandon  the  enterprise.  If  the  latter  be  successful,  Potter  and 
Macklin  must  each  refund  to  Mason  one-third  (%)  of  the  total 
amount  advanced  by  the  latter  for  organizing  the  Company  and 
financing  the  scheme. 

Draft  a  contract  among  the  three  members  of  the  Syndicate 
upon  the  preceding  basis. 

CASE  NO.  11. 

The  Syndicate  mentioned  in  Case  No.  10  has  been  successful  Guaranty 
in  its  efforts.  Macklin  found  that  twenty-four  thousand  dollars 
($24,000.00)  per  mile  of  main  line,  fifteen  thousand  dollars 
($15,000.00)  per  mile  of  branch  line,  and  nine  thousand  dollars 
($9,000.00)  per  mile  of  siding  would  cover  the  entire  cost  of 
construction  and  equipment,  and  would  allow  a  probable  profit  of 
twenty  (20)  per  cent;  and  Mason  agreed  to  accept  the  contract  at 
these  rates. 

In  round  figures  the  number  of  miles  of  main  line  proved  to 
be  ninety-two  (92),  the  number  of  miles  of  branch  lines  nineteen 
(19),  and  the  number  of  miles  of  sidings  and  terminal  tracks 
ten  (10). 

The  Tombstone  Alvarado  Railway  Company  was  organized  in 
Arizona  as  agreed  upon,  then  Potter  and  Macklin  went  to  New  York, 
where,  after  great  efforts,  they  succeeded  in  inducing  the  banking 
firm  of  Liebsrman  &  Co.  to  underwrite  the  bonds.  It  was  decided 
between  the  Bankers  and  the  Syndicate  to  issue  five  (5)  per  cent. 
mortgage  bonds  to  the  amount  of  three  and  a  half  million  dollars 
($3,500,000.00)  and  stock  to  a  like  amount.  The  Bankers  were  to 
take  the  bonds  at  eighty  (80)  cents  on  the  dollar  and  were  to 
receive  sixty  (60)  per  cent,  of  the  capital  stock. 

They  were  to  pay  Potter  a  commission  of  ten  (10)  per  cent,  of 
their  net  profit  on  the  sale  of  the  bonds,  but  were  not  to  give  him 
any  portion  of  their  share  of  the  stock. 


126 


SPECIFICATIONS    AND    CONTRACTS. 


Copartnership 


The  Bankers  also  agreed  to  advance  money  to  Mason  from  time 
to  time  up  to  an  amount  of  two  hundred  thousand  dollars 
($200,000.00)  to  enable  him  to  carry  on  the  construction;  because 
as  usual  the  proceeds  of  the  sale  of  the  bonds  were  not  available 
for  payment  to  the  Contractor  until  after  certain  amounts  of  work 
were  finished  and  certified  to  by  both  the  Company's  Engineer  and 
a  supervising  engineer  appointed  by  the  Bankers  to  see  that  the 
money  be  properly  expended.  For  this  accommodation  the  Bankers 
are  to  receive  five  (5)  per  cent,  interest  on  the  money  advanced  and 
ten  (10)  per  cent,  of  the  Contractor's  net  profit  on  the  entire  work, 
as  shown  by  his  books,  which  are  always  to  be  open  to  the  inspec- 
tion of  the  Bankers'  representatives. 

Draft  a  contract  between  the  Bankers  on  the  one  hand  and 
the  Railway  Company  and  the  members  of  the  Syndicate  on  the 
other,  so  as  to  embody  all  the  pertinent  conditions  given  in  this  case 
and  in  the  preceding  one. 

Draft  also  the  necessary  contract  between  Mason,  the  Contractor, 
and  the  Tombstone  Alvarado  Railway  Company,  making  the  said 
Contractor  give  the  Company  a  surety  company  bond  to  the  amount 
of  two  hundred  thousand  dollars  ($200,000.00),  guaranteeing  the 
faithful  performance  of  the  work. 

CASE  NO.  12. 

Referring  to  the  last  "Case,"  draft  a  contract  between  the  con- 
tractor, Joseph  Mason,  and  the  North  American  Surety  Company 
of  New  York  City  for  the  two  hundred  thousand  dollar  ($200,000.00) 
bond  required. 

N.  B. — It  would  be  well  for  the  student,  before  attempting  this, 
to  procure  blank  forms  of  bonds  from  two  or  three  surety 
companies. 

CASE  NO.  13. 

Two  engineering  firms  of  Pittsburg,  Pa. — viz.,  Davis  &  Wilkin- 
son, who  make  a  specialty  of  electric  railways,  and  Harris  & 
Elmore,  who  make  a  specialty  of  bridgework — have  concluded  to 
join  forces  to  do  the  entire  engineering  work  on  an  important  elec- 
tric railway  that  is  to  be  built  from  Pittsburg  to  a  neighboring  city, 
and  that  is  to  include  an  expensive  bridge  over  the  Monongahela 
River,  besides  a  number  of  smaller  bridges  on  the  line. 

Harris  &  Elmore  are  to  attend  to  all  the  bridgework  and  Davis 
&  Wilkinson  to  the  balance  of  the  engineering;  but  in  order  to 
save  duplicating  field  parties,  D.  &  W.'s  employees  are  to  supervise 


SPECIFICATIONS    AND    CONTRACTS.  127 

the  erection  of  the  small  bridges  along  the  line  at  H.  &  E.'s 
expense. 

The  combined  firms  are  to  receive  from  the  Railroad  Company 
for  their  services  a  gross  fee  of  five  (5)  per  cent,  of  the  total  cost 
of  construction,  which  fee  is  to  be  divided  between  the  two  firms 
according  to  the  ratio  that  the  cost  of  work  done  under  the  juris- 
diction of  each  bears  to  the  grand  total  cost  of  construction. 

All  payments  on  account  to  the  combination  are  to  be  divided 
by  these  ratios,  using  the  estimated  total  costs,  irrespective  of 
whether  the  said  payments  on  account  relate  to  bridgework  or  to 
other  work. 

It  is  understood  that  this  combination  of  interests  applies  to 
this  particular  piece  of  construction  only,  and  that  the  two  firms 
are  at  liberty  to  do  any  other  work  they  choose  at  the  same  time 
that  the  joint  work  is  in  progress,  provided,  however,  that  neither 
firm  permits  other  business  to  interfere  with  the  proper  prosecution 
of  the  said  joint  work. 

Draft  the  proper  contract  between  the  two  firms. 

CASE  NO.  14. 

The  Government  of  British  Columbia  is  about  to  call  for  bids  Copartnership 
upon  the  substructure  of  a  large  bridge  to  be  built  across  the  Fraser 
River.  Armitage  &  Morris  are  an  old-established  firm  of  con- 
tractors who  have  executed  great  constructions  in  the  Province  of 
British  Columbia,  and  have  become  wealthy  thereby;  but  they  have 
had  no  experience  in  sinking  piers  by  open-dredging  or  in  driving 
long  piles  by  means  of  the  water-jet.  On  this  account  they  desire 
to  associate  with  them  for  this  special  contract  Mr.  Beaupere,  an 
engineer  of  experience  in  the  contracting  part  of  bridge  construc- 
tion, under  the  firm  name  Armitage,  Morris,  &  Beaupere. 

They  agree  to  pay  him  a  salary  of  two  hundred  dollars 
($200.00)  per  month  from  start  to  finish  and  to  give  him  besides 
a  ten  (10)  per  cent,  interest  in  the  net  profits  on  the  contract, 
providing  that  there  are  any  net  profits,  his  monthly  salary  being 
counted  as  a  part  of  the  expense  of  construction. 

But  if  there  are  no  net  profits,  Beaupdre  is  not  to  stand  any 
share  of  the  loss  on  the  contract. 

Armitage  &  Morris  are  to  turn  in  all  the  plant  they  have  that 
can  be  used  to  advantage  on  the  work,  and  are  to  purchase  any 
additional  plant  that  may  prove  to  be  necessary.  When  the  con- 
tract is  fulfilled,  whatever  remains  of  the  said  extra  plant  is  to  be 


128  SPECIFICATIONS    AND    CONTRACTS. 

appraised  by  a  party  or  parties  agreed  upon  by  the  principals,  and 
the  value  thereof  thus  determined  is  to  be  added  to  the  figured 
profits  on  the  work,  the  first  cost  of  the  new  plant  having  been  com- 
puted as  a  part  of  the  cost  of  construction. 

If,  before  the  substructure  of  the  bridge  is  completed,  the 
Government  decides  to  give  the  firm  the  contract  for  building  the 
approaches  to  the  bridge  or  any  portion  of  them,  Beaupere  is  to 
share  in  the  profits  on  this  additional  work;  but  if  the  said  approach 
work  is  awarded  the  firm  after  the  substructure  is  finished  and 
accepted  by  the  Government's  engineers,  Beaupere  is  not  to  have 
any  interest  in  the  additional  contract. 

Should  at  any  time  Beaupere  desire  to  drop  out  of  the  combina- 
tion, he  may  do  so  by  giving  the  other  partners  ten  (10)  days'  notice, 
in  which  case  he  is  to  receive  his  salary  in  full  to  the  date  of  his 
leaving,  plus  cash  to  the  amount  of  his  share  of  the  estimated  profit 
on  the  job  up  to  that  time,  provided  that  the  parties  in  interest  can 
agree  as  to  what  is  a  proper  estimate  of  the  amount  of  the  said 
profit.  If  they  cannot  so  agree,  the  division  of  the  profits  is  to  be 
postponed  until  the  completion  of  the  entire  work  contracted  for  at 
the  time  of  the  dissolution  of  the  special  partnership,  the  amount 
of  profit  at  the  said  time  being  prorated  from  the  actual  total 
profit  in  the  proportion  that  the  value  of  the  entire  work  done 
up  to  the  date  of  the  Government  Engineer's  last  monthly  estimate 
bears  to  the  total  value  of  the  construction  as  shown  by  his  final 
estimate. 

But  should  at  any  time  Armitage  &  Morris  desire  to  sever  the 
special  partnership,  or  in  other  words  dispense  with  Beaupere's 
assistance,  they  can  do  so  by  giving  him  ten  (10)  days'  notice  and 
paying  him  an  amount  to  be  agreed  upon  by  them  all  as  a  proper 
compensation  in  full.  Failing  such  an  agreement,  Beaupere  is  to  be 
paid  his  salary  in  full  to  the  date  of  the  sundering  of  relations; 
and  after  the  contract  is  completed  he  is  to  receive  his  full  share  of 
the  actual  net  profits,  plus  one-half  of  the  remaining  salary  that  he 
would  have  earned  had  he  remained  till  the  finishing  of  the  work, 
the  said  salary  being  counted  as  cost  of  construction  when  the  net 
profits  are  being  computed. 

In  the  event  of  the  death  of  Beaupere  before  the  contract  is 
completed  his  salary  shall  immediately  cease,  and  his  estate  shall 
be  entitled  to  receive  at  once  his  share  of  the  estimated  profits  up 
to  the  date  of  the  last  monthly  estimate;  and  after  the  contract  is 
finished  one-half  of  the  balance  of  his  share  of  the  actual  total  profit. 


SPECIFICATIONS    AND    CONTRACTS.  129 

If  an  agreement  cannot  be  reached  as  to  the  proper  amount  of  esti- 
mated profit  at  the  time  of  Beaupere's  death,  the  settlement  shall  be 
postponed  until  after  the  entire  work  is  finished  and  paid  for;  and 
in  this  case  six  (6)  per  cent,  interest  shall  be  allowed  from  the 
date  of  said  death  till  the  time  of  final  settlement  upon  that  portion 
of  the  profits  finally  determined  to  have  been  due  at  the  said  date 
of  death. 

In  case  of  the  death  of  either  Armitage  or  Morris  before  the  com- 
pletion of  the  work,  the  executors  or  heirs  of  the  deceased  shall 
supply  a  competent  man  at  their  expense  to  complete  the  personal 
work  of  the  deceased;  and  in  consequence  the  division  of  profits 
of  the  special  partnership  will  not  be  affected  by  such  a  demise. 

If  both  Armitage  and  Morris  should  die  before  the  completion 
of  the  work,  their  executors  or  heirs  must  supply  at  their  expense 
competent  substitutes  to  do  the  personal  work  of  the  deceased;  and 
at  the  time  of  final  settlement  of  the  affairs  of  the  special  partner- 
ship Beaupere  shall  receive  twenty  (20)  instead  of  ten  (10)  per 
cent,  of  the  total  net  profits,  the  increase  being  allowed  as  compen- 
sation for  the  extra  work  and  responsibility  devolving  upon  him 
because  of  the  death  of  the  two  partners. 

Draft  a  contract  between  the  old  firm  and  Beaupere  embodying 
all  the  preceding  conditions  and  establishing  the  new  temporary 
partnership. 


Notes  on  the  Law  of  Contracts. 


An  Appendix  to  WaddelTs  Specifications  and  Contracts. 


By  John  Cassan  Wait,  M.  C.  E.,  LL.  B. 


Introduction. — Dr.  Waddell  has  presented  in  the  foregoing  pages 
a  practical  synopsis  of  the  subject  of  Engineering  Specifications  and 
Contracts,  which,  if  carefully  studied  and  applied  to  the  cases  pre- 
sented, will,  I  believe,  result  in  very  great  benefit  to  students  of 
engineering  and  architecture.  He  has  first  taken  up  the  subject  of 
specifications,  they  being  more  directly  the  work  of  the  engineer 
or  architect,  being  the  subject-matter  of  the  contract  and  therefore 
reasonably  requiring  to  be  created,  developed  and  described  before 
being  made  the  subject  of  a  contract.  The  specifications  are  also 
more  within  the  purview  and  understanding  of  the  student  of  engi- 
neering or  architecture  than  is  the  contract,  and  they  are  therefore 
properly  the  subject  of  prior  study  and  practice. 

SPECIFICATIONS. 

1.  Contract  Embodies  Specifications  and  Plans. — -The  specifica- 
tions are  not  strictly  an  independent  document  to  be  distinguished 
from  the  contract,  but  they  are  a  component  part  of  the  contract, 
the  part  descriptive  of  the  structure  and  of  the  labor  and  materials 
comprising  it.  If  the  specifications  and  plans  are  independent 
printed  or  written  documents,  then  they  should  either  be  fastened 
to  or  bound  with  the  contract,  or  they  should  be  referred  to  in  the 
contract  and  identified  either  by  description  or  by  the  signature 
of  the  parties.  The  plans  are  mere  graphic  specifications,  an  abbre- 
viated form  of  illustrating  and  specifying  dimensions  and  details 
of  construction.  The  specifications  should  embody  the  plans,  and 
they  together  should  contain  a  full  and  complete  description  of  the 
materials  and  work  to  be  furnished  and  of  the  structure  to  be 
erected.  They  should  contain  all  the  dimensions,  instructions  and 


132  SPECIFICATIONS  AND   CONTRACTS. 

directions  necessary  to  secure  the  result  to  be  accomplished.  The- 
description  of  materials  should  be  made  by  such  tests  and  com- 
parisons that  if  two  contractors  have  work  upon  adjoining  sections 
with  but  an  imaginary  plane  between  them,  the  section  engineers 
respectively  would  and  must  arrive  at  the  same  result,  whether  it 
be  one  of  measurement  or  one  of  classification. 

2.  Contents    of   Specifications. — The    specifications    and    plans 
should  definitely  describe  the  site  of  the  structure,  the  crude  stock 
and  the  process  of  manufacture  of  the  materials  and  the  finished 
materials  of  construction,  not  only  positively  as  to  good  properties 
that  they  shall  possess,  but  negatively,  naming  defects  that  they 
shall  not  contain.     They  should  provide  for  inspection  and  tests  at 
the  mills  and  shops  and  for  field  inspection  during  erection,  and 
every  class  of  work  should  be  described  in  sufficient  detail  to  enable 
the  builder  to  erect  and  complete  the  structure  without  further  direc- 
tion or  explanation  from  the  engineer  or  superintendent.     Specifica- 
tions and  plans  so  prepared  would  be  ideal,  and  every  student  of 
engineering  should  at  least  endeavor  to  make  his  specifications  and 
plans  ideal. 

3.  What  are  the  Specifications. — The  specifications  may  consist 
of  a  printed  book  with  the  signature  of  the  architect  and  engineer 
and  the  approval  of  numerous  officials  of  a  company  or  of  a  govern- 
ment, or   it  may  consist  merely  of  a  letter  written,  or  of  a  mer© 
sketch  which  describes  the  materials  and  methods  to  be  employed. 
Drawings  exhibited  to  a  contractor  when  a  contract  is  signed,  if 
referred  to  in  the  contract  so  as  to  be  identified,  become  a  part  of 
the  contract;  likewise,  an  act  of  the  legislature  or  of  Congress  may 
be  made  a  part  of  a  contract  by  reference.     So  plans,  profiles  and 
drawings  may  become  a  part  of  an  act  of  the  legislature,  but  if  the 
act  itself  does  not  refer  to  them  they  cannot  be  thereafter  used  in 
construing  the  act. 

Frequently  specifications  or  plans  are  referred  to  as  signed  or 
attached,  when  in  fact  they  have  not  been  signed  or  attached.  In 
such  cases  oral  evidence  may  be  introduced  to  show  what  specifica- 
tions were  intended.  If  they  can  be  identified,  then  they  are  in 
legal  effect  incorporated  into  the  contract. 

4.  Specifications  to  be  Created. — Contracts  are  sometimes  drawn 
requiring  structures  to  be  built  according  to  general  plans  and  speci- 
fications, with  the  provision   that  the  work  shall   be   erected   and 
completed  in  accordance  with  drawings,  directions  and  instructions 
to  be   prepared   or  furnished  by  the   architect   or  engineer.     Such 
practice   frequently    results   in   controversy  and   disagreements  be- 


NOTES  ON  THE  LAW  OF  CONTRACTS.        133- 

tween  the  engineer  and  the  contractor,  and  it  may  well  be  doubted 
if  the  contractor  would  be  bound  to  execute  work  in  accordance 
with  plans  and  specifications  that  differed  materially  from  those 
furnished  to  the  contractor  when  he  entered  into  the  contract,  and 
which  materially  changed  the  cost  of  the  work.  Ordinances  and 
regulations  referred  to  in  a  contract  become  a  part  thereof,  and 
will  hold,  not  only  as  to  the  manner  in  which  the  work  shall  be 
done,  but  also  as  to  how  it  shall  be  paid  for. 

5.  Limits   of   the  Work    to   be  Defined. — Specifications   should' 
show  the  limits  and  boundaries  of  work,  not  only  as  to  their  area 
but  as  to  the  depth  of  the  foundations  and  sub-structures.     Much 
litigation  would  be  avoided  if  provision  was  made,  either  by  unit 
measure  or  otherwise,  to  compensate  a  contractor  for  the  additional 
and  increased  depth  that  excavations  and  foundations  are  required 
to  be  carried  to  to  secure  good  foundations.     Frequently  plans  show 
a  depth  to  which  foundations  shall  be  carried,  and  the  specifications 
provide   that  the   excavation  shall   be   carried   and   the   foundation 
built  to  such  depth  as  shall  be  satisfactory  to  the  engineer  or  archi- 
tect.    If  the  sub-soil  be  found  poor,  the  engineer  and  architect  shall 
take  it  upon  themselves  to  require  the  foundations  to  be  sunk  to 
greater   depth,  to  the  great  loss  and  damage  of  the  contractor  or 
builder.      Such   practice   leads   to  unhappiness  and    litigation,   and 
could   easily  be  avoided  to  the  advantage  of  both  the  owner  and 
the  contractor  by  limiting  the  extent  of  the  work  vertically  as  well 
as  horizontally.     The  limits  of  work  are  defined  or  shown  upon  the- 
plans  by  boundary  or  dividing  lines;   whatever  is  required  outside 
or  beyond  such  limits  is  extra  work,  for  which  additional  compensa- 
tion may  be  claimed  by  the  contractor. 

6.  Working  Drawings  at  Variance  with  General  Plans. — When 
bids  have  been  made  and  accepted  on  original  plans  and  specifica- 
tions,  and   the   working  drawings  afterwards  furnished  vary  from 
the  original  plans,  involving  much  additional  work,  the  contractor 
may  refuse  to  continue  the  work  at  the   contract  price.     That  he 
should   do,   notwithstanding  the   owner  employs   others   to   do    the 
work  at  an  increased  compensation,  for  the  contractor  may  recover 
for  the  work  he  has  done  if  the  variance  between  the  original  and 
the  working  drawings  be  material.     If,  however,  the  contractor  per- 
forms the  work  without  protest,  he  very  likely  will  be  held  to  have 
done  the  work  under  his  contract  and  at  the  contract  price  or  prices. 

7.  Conflict  of  Specifications  and  Plans  with  Express  Terms  of 
the  Contract. — If  the  terms  of  the  contract  do  not  agree  with  the 
specifications,  they  are  said  to  be  in  conflict,  and  the  question  is,. 


134  SPECIFICATIONS   AND   CONTRACTS. 

"What  was  the  intention  of  the  parties  as  set  forth  in  the  instru- 
ment taken  as  a  whole?"  The  whole  question  is,  "What  was  the 
intention  of  the  parties?"  That  must  be  determined  from  a  con- 
sideration of  the  entire  contract,  including  the  covenants,  the  speci- 
fications and  the  plans.  If  the  intention  be  legal,  it  will  control, 
i.e.,  if  not  incompatible  with  the  rules  and  maxims  of  the  law,  the 
mutual  intention  will  prevail,  and  this  is  "the  polar  star"  in  the 
interpretation  of  all  contracts.  To  arrive  at  the  intention  the  Court 
will,  so  far  as  possible,  put  itself  in  the  position  and  situation  of 
the  parties  at  the  time  the  contract  was  executed.  The  conduct  of 
the  parties  and  the  practical  interpretation  which  they  have  them- 
selves given  to  the  terms  of  the  contract,  will  have  its  influence, 
if  the  intention  be  not  clear  as  expressed.  If  the  contract  and  speci- 
fications do  not  agree  with  the  working  drawings  and  the  work 
has  been  done  under  the  direction  of  the  engineer,  according  to  a 
plan,  model  or  sample  furnished,  the  practical  construction  which 
the  parties  have  adopted  will  prevail  over  the  literal  meaning  of 
the  contract  and  specifications. 

8.  Contract  the  Superior  Instrument. — Other  things  being  equal, 
the  contract,  being  the  more  solemn  instrument,  is  usually  held  to 
prevail   over  the   specifications.     This  is  because   the  contract  is 
usually  the  more  ceremonious  undertaking  and  it  usually  defines 
the  obligations  assumed  by  the  parties.     It  is  the  culminating  act 
by  which  the  parties  bind  themselves,  and  it  is  less  often  subject 
to  alteration.     On  the  other  hand,  the  specifications  and  plans  are 
descriptive  of  the  work  and  the  manner  in  which  it  is  to  be  per- 
formed, and  they  are  frequently  subject  to  changes  and  alterations 
as  new  conditions  and  changed  circumstances  attending  the  perform- 
ance of  the  work  may  arise.     There  might  be  reasons  why  either 
the  specifications  or  the  plans  should  prevail  one  over  the  other, 
depending  upon  the  character  of  the  conflict.     The  contract  or  the 
specifications  would  prevail   over  the  plans  only   because  and   for 
the  reason  that  the  circumstances  attending  any  case  would  lead 
the  Court  to  give  greater  weight  to  the  contract  or  specifications, 
because  it  more  clearly  and   fairly  expressed  the  intention  of  the 
parties.     If  there  were  any  attending  circumstances  that  indicated 
with  sufficient  certainty  that  the  parties  intended  that  the  plans 
should  control,  the  Court  would  be  bound  so  to  interpret  the  inten- 
tion of  the  parties;   thus  the  plans,  the  proposal,  the  specifications 
or  the  contract  may  prevail. 

9.  All  Parts  will  be  Reconciled  if  Possible. — If  the  Court  can 
find  a  construction  or  interpretation  that  will  harmonize  with  both, 


NOTES  ON  THE  LAW  OF  CONTRACTS.        135 

or  all  of  the  several  parts  of  the  contract,  viz.,  the  plans,  specifica- 
tions and  covenants,  it  will  adopt  that  meaning.  The  meaning  which 
is  consistent  with  all  parts.  Therefore,  when  specifications  required 
walls  to  be  vaulted,  and  the  plans  showed  them  to  be  16  inches  in 
width  without  vaulting  or  spaces,  it  was  held  that  the  walls  were 
to  be  16  inches  including  the  vaulting,  and  that  evidence  would 
not  be  admitted  to  explain  the  contract.  So,  when  specifications 
required  walls  to  be  plastered  with  K.  &  Co.'s  cement  under  the 
direction  of  the  Superintendent  of  K.  &  Co.,  and  the  specifications 
also  required  that  cement  and  sand  should  be  mixed  in  equal  parts, 
it  was  held  that  effect  should  be  given  to  each  requirement  by  hold- 
ing that  the  Superintendent's  powers  extended  to  the  laying  of  the 
cement  plaster  and  that  the  contractor  was  bound  by  the  propor- 
tions named  in  the  specifications  and  that  the  contractor  could  not 
change  the  proportions  even  though  the  Superintendent  did  con- 
sent to  it. 

10.  Construction  against  Party  using  Language. — Another  point 
of  law  to  be  considered  in  the  interpretation  of  clauses  which  are 
in  conflict,  is  that  the  courts  will  usually  construe  the  terms  most 
strongly  against  the  party  who  first  used  them  or  who   prepared 
the  contract.     This  rule  of  construction  is  generally  applied,  except 
where  the  government  or  the  public  are  the  parties,  in  which  case 
it  is  usually  held  that  the  meaning  will  be  adopted  which  is  most 
favorable  to  the  government  or  public,  the  courts  holding  that  the 
interests  of  the  public  should  be  protected,  because  there  is,  pre- 
sumably, nobody  who  has  the  interest  in  public  welfare  that  he  has 
in  his  own. 

11.  Written  and  Printed  Matter,  and  Punctuation. — If  in  the 
contract  or   specifications  the   written    portion   of  the   contract   is 
repugnant  to  the  printed  part,  it  is  the  general  rule  that  the  printed 
part  must  yield  to  the  written,  as  the  latter  is  presumed  to  be  de- 
liberately expressed  in  the  written  portion  of  the  contract  and  sub- 
sequent to  the  printed   portion.     To  have  any  part  of  a  contract 
control  another  part,  it  must  be  inconsistent  or  opposed  to  it.     If 
the  two  parts  can  be  reconciled,  the  Court  is  bound  to  do  so.     There- 
fore, when  the  printed  part  provided  that  payments  should  be  made 
on  the  architect's  certificate,  and  the  written  part  provided  that  the 
payments  should   be  made  at  fixed   stages  in  the  progress  of  the 
work  and  at  a  stated  time  after  its  completion,  it  was  held  that 
there  was  no   inconsistency   between   them   and  that  neither  part 
would  be  rendered  inoperative.    In  interpreting  contracts  or  legal 
documents,  punctuation  has  very  little  weight.     The  want  of  a  punc- 


136  SPECIFICATIONS  AND   CONTRACTS. 

tuation  mark  or  the  misplacing  of  one  will  not  be  allowed  to  vitiate 
the  contract  or  destroy  its  meaning  any  more  than  bad  grammar 
•or  bad  spelling. 

12.  Work  According  to  Specifications  or  as  a  First-Class  Job. — 
When  work  is  to  be  performed  in  a  good  and  thoroughly  work- 
manlike manner  and  at  the  same  time  according  to  specifications 
and  plans,  the  question  arises  as  to  whether  the  contractor  is  ex- 
cused from  making  a  first-class  job  if  he  completes  his  contract 
in  accordance  with  the  specifications  and  plans.  An  undertaking 
to  construct  a  piece  of  work  is  an  undertaking  to  do  it  well  and 
in  a  workmanlike  manner,  even  though  it  be  not  expressly  stipu- 
lated; but  if  the  owner  or  his  architect  or  engineer  specifies  mate- 
rials, workmanship  or  the  manner  in  which  the  structure  is  to  be 
erected,  and  if  after  completion  it  proves  to  be  defective  and  does 
not  fulfill  the  purposes  for  which  it  was  intended,  then  the  fault 
lies  with  and  the  loss  falls  upon  the  owner.  This  was  so  held  when 
the  owner  required  a  contractor  to  follow  his  directions  in  making 
an  experimental  article  from  a  pattern  furnished.  The  owner  was 
required  to  pay,  even  though  the  article  was  not  fit  for  the  uses 
contemplated. 

13.  Implied  Warranty  of  Work. — Whoever  undertakes  to  erect 
a  structure,  impliedly  warrants  that  he  is  reasonably  skilful  in  his 
trade  or  calling  and  that  the  materials  he  uses  should  be  suitable 
for  the  purposes  for  which  they  are  used.  A  builder  has  been  held 
liable  for  a  defective  chimney  which  would  not  carry  off  the  smoke, 
for  which  it  was  designed.  The  fact  that  the  price  paid  was  grossly 
inadequate  does  not  excuse  the  builder  from  fulfilling  his  under- 
taking to  do  a  thoroughly  workmanlike  job.  When  one  has  agreed 
to  execute  a  job  in  a  plain  and  workmanlike  manner,  or  in  a  man- 
ner to  be  determined  by  the  engineer,  it  has  been  held  that  he  is 
bound  to  show  that  he  executed  the  work  in  a  plain  and  workman- 
like manner.  The  courts  sometimes  hold  that  the  provision  that 
the  work  should  be  substantial  and  workmanlike  was  an  additional 
safeguard  to  insure  a  satisfactory  completion  of  the  work;  that 
while  substantial  and  workmanlike  did  not  imply  a  perfect  job, 
yet  it  was  a  question  of  fact  for  the  jury  to  determine  if  the  work 
complied  with  the  contract,  and  was  not  a  question  for  the  court. 
It  has  been  held  that  the  work  should  be  perfectly  done  for  the 
character  of  the  job  contemplated.  It  has  also  been  held  that  the 
'expression  cannot  be  overcome  by  showing  the  custom  or  usage 
which  allowed  the  use  of  inferior  materials  or  unskilful  work. 

14.     Owner  Warrants  Sufficiency  of  Plans,  When. — Work  done 


NOTES  ON  THE  LAW  OF  CONTRACTS.        137 

^strictly  according  to  plans  and  specifications  furnished  and  adopted 
by  the  owner  is  done  and  completed  at  the  risk  of  the  owner,  unless 
the  contractor  has  either  expressly  or  impliedly  undertaken  to  war- 
rant the  sufficiency  and  stability  of  the  work.  When  work  has  been 
completed  in  accordance  with  plans  and  specifications  and  under 
the  direction  and  to  the  satisfaction  of  the  architect,  and  the  struc- 
ture collapses,  the  contractor  is  not  liable  if  he  has  furnished  skilled 
labor  and  good  materials  and  if  the  failure  was  due  to  defective  and 
insufficient  plans.  The  same  has  been  held  of  a  machine  that  would 
not  work  when  completed;  of  a  building  that  settled  and  cracked 
because  the  footing  stones  were  too  small  as  specified  by  the  archi- 
tect; and  where  an  arch  fell  because  it  would  not  sustain  the  load 
imposed  upon  it.  The  contractor,  to  escape  liability,  must  have 
completed  his  work  in  a  workmanlike  manner  and  must  have  em- 
ployed good  materials  and  must  have  done  his  work  in  a  thorough 
and  substantial  manner,  and  he  must  prove  that  the  structure  failed 
because  of  inherent  defects  of  the  plans  and  specifications. 

15.  Contract  Entire,  for  a  Completed  Structure. — Some  courts 
have   distinguished  those  cases  in  which  the  builder  is  merely  to 
build  according  to  plans  and  specifications,  from  those  cases  in  which 
he   is   completely   tp  furnish   and   deliver   the   structure   ready   for 
use.     Some  of  the  courts  held  that  if  a  contractor  has  undertaken 
to  deliver  a  structure  complete,  his  undertaking  is  a  warranty  that 
the  plans  and   specifications   are  sufficient,   and   that  by  assuming 
the   obligation    to   complete   and    deliver   a   finished    structure,   the 
contractor  approved  and  adopted  the  plans  and  specifications  fur- 
nished by  the  owner.     This  has  been  so  held  where  a  building  settled 
owing  to  latent  conditions  of  the  soil.     The  courts  held  that  the 
contractor  having  agreed  completely  ±o  finish  the  building,  fit  for 
use   and   occupation,   he   was   bound  by  his  covenant.     In  another 
case,  where  the   contractor  was  to   construct  a  well  for  a  certain 
sum,  according  to  specifications  which  called  for  a  curb  of  certain 
shape  and  size,  to  be  made  of  timber  and  planking  of  a  prescribed 
size  and  quantity,  it  was  held  that  the  contractor  could  not  recover 
for  work  and  materials  lost  by  the  caving  of  the  well  before  com- 
pletion, notwithstanding  that  the  failure  was  due  to  weakness  of  the 
curb  specified.     When  the  contractor   warrants  that  the  structure 
will  answer  the  purposes  for  which  it  was  intended,  or  that  the 
machine  will   work,   he  will  not  be   relieved   from  such   warranty 
because  the  plans  or  specifications  are  defective. 

16.  Undertaking  to  Build  Implies  Understanding  of  Plans,  etc. 
— An  undertaking  to  erect  a  structure  according  to  certain  plans 


138  SPECIFICATIONS  AND    CONTRACTS. 

and  specifications  implies  an  understanding  of  them  on  the  part 
of  the  contractor  or  builder,  and  the  law  will  not  permit  him  to 
escape  liability  for  the  failure  of  the  structure  on  the  ground  that 
he  exercised  ordinary  care  and  skill  to  understand  and  carry  out 
the  plans  and  specifications.  If  the  contractor  departs  from  the 
working  drawings  which  are  part  of  the  contract,  he  becomes  a 
warrantor  of  the  strength  and  safety  of  the  structure,  unless  the 
material  deviations  from  the  plans  are  made  with  consent  or  by 
order  of  the  owner. 

17.  Specifications  against  Engineer's  Decision  and  Instruction. 
— It  is  usually  provided  that  work,  labor  and  materials  shall  con- 
form strictly  to  the  specifications  and  plans,  and  also  that  the  direc- 
tions and  instructions  of  the  engineer,  as  given  from  time  to  time 
during  the  progress  of  the  work,  shall  be  strictly  followed,  and 
sometimes  in  addition  thereto  that  the  work  shall  conform  to  the 
working  drawings  and  directions  given  from  time  to  time  by  the 
engineer  or  architect,  and  that  the  whole  structure  shall  be  com- 
pleted to  the  acceptance  and  satisfaction  of  the  engineer.  Some- 
times the  specifications  and  plans  are  prepared  at  the  general  offices 
of  the  railroad,  municipality  or  company,  and  the  resident  engineer 
or  engineer  in  charge  may  not  agree  that  the  same  properly  fit 
or  satisfy  the  conditions  or  circumstances  arising  during  construc- 
tion, and  the  latter  establishes  his  own  personal  standard  of  excel- 
lence to  which  the  work  shall  conform,  and  the  question  is,  Which 
shall  prevail — the  specifications  or  the  resident  engineer?  In  this 
case  we  return  again  to  the  polar  star  in  the  exposition  of  instru- 
ments, and  determine,  if  possible,  what  was  the  intention  of  the 
parties. 

18.  Engineer's  Powers  .Defined  in  Contract. — The  engineer's 
powers  and  duties  are  limited  to  those  which  the  contract  expressly 
confers  or  may  be  fairly  implied  from  its  terms.  He  cannot  go 
beyond  or  behind  it.  His  decision  must  relate  exclusively  to  mat- 
ters embraced  within  the  agreement  to  submit  to  his  directions  and 
determinations.  His  decisions  are  conclusive  only  with  regard  to 
work  described  in  the  contract  and  specifications.  He  must  measure 
and  classify  the  work  and  materials  according  to  the  rules  and  tests 
named  by  the  parties  in  the  specifications.  Even  though  he  be  sole 
judge  of  the  work,  its  quality  and  character,  he  cannot  accept  what 
the  contract  forbids  nor  demand  what  the  contract  does  not  re- 
quire. He  must  accept  those  things  which  meet  the  requirements 
of  the  specifications,  and  work  and  materials  may  not  be  accepted 
because  they  are  as  good  or  as  suitable  for  the  purpose  without 


NOTES  ON  THE  LAW  OF  CONTRACTS.        139 

the  consent  or  acquiescence  of  the  parties  themselves.  Neither  the 
owner  nor  the  contractor  will  be  bound  by  the  acceptance  of  the 
engineer,  unless  the  work  and  materials  conform  to  the  contract 
requirements,  even  if  they  be  accepted  in  good  faith  or  under  an 
erroneous  view  of  the  contract.  So  far  as  the  contract  and  speci- 
fications show  an  evident  intention  to  limit  the  engineer's  discre- 
tion and  to  fix  or  name  the  quality  of  the  work,  so  far  must  he 
follow  the  specifications. 

19.  Engineer's  Duty  to  Follow  Specifications. — The  first  duty 
of  an  engineer  is  to  require  that  the  work  conform  to  the  specifica- 
tions.     That  done,  he  may  exercise  his  discretion  and  good  judg- 
ment.    He  may  not  accept  a  brick  house  for  one  of  marble,  even 
though  the  brick  house  is  substantially  as  good  or  even  better  than 
the   one   of   marble.     He  cannot  accept   bluestone   for   brownstone> 
nor  a  12-inch  wall  for  a  16-inch  wall,  nor  Bessemer  steel  for  open- 
hearth  steel.     When  the  specifications  require  mortar  to  be  of  equal 
parts  of  cement  and  sand,  a  different  mixture  cannot  be  authorized 
by  the   engineer.     When   work  and   materials   are  required  to   be 
strictly  according  to  specifications,  and  the  engineer  is  also  to  ac- 
cept and  approve  the  work   finally,  and  the   contractor  has  com- 
pleted a  structure  strictly  in  accordance  with  the  plans  and  specifica- 
tions, must  the  engineer  approve  and  accept?     In  this,  as   in   all 
cases  of  conflict,  it  is  the  question  of  intention.    To  determine  that 
the  court  will  consider  every  part  of  the  contract  and  it  will  put 
itself  in  the  shoes  of  the  parties,  consider  their  relations  and  the 
conditions  and  circumstances  under  which  the  contract  was  made 
and  under  which  the  work  had  to  be  done.     The  court  will  con- 
sider the  interpretation  which  the  parties  themselves  have  adopted. 
Generally,  when  work  is  to  be  completed  according  to  specifications 
and  to   the  acceptance   and  satisfaction  of  the   engineer,  and   the 
specifications  describe  the  work  and  materials  in  detail,  it  is  suf- 
ficient  to   complete   the  work   as   specified.     Such   a   performance 
should    be   to   the   reasonable    satisfaction    and    acceptance   of  the 
engineer. 

20.  Engineer's    Acceptance    Additional    Safeguard. — This    has 
been  so  held,  but  the  courts  have  sometimes  held  that  the  require- 
ments that  the  work  should  be  to  the  acceptance  and  satisfaction 
of  the  engineer  was  an  additional  safeguard.     When  the  engineer's 
decision  is  final  and  the  engineer  has  signified  his  acceptance  and 
approval,  it  will  bind  the  owner  even  though  there  has  not  been 
a  material  compliance  with  the  specifications;  but  the  engineer  must 
have  acted  in  good  faith.    If  work  has  been  completed  according 


140  SPECIFICATIONS   AND    CONTRACTS. 

to  the  specifications  and  plans  and  the  engineer  refuses  his  accept- 
ance and  approval,  it  is,  to  say  the  least,  evidence  of  bad  faith. 
If  the  working  drawings  furnished  by  the  engineer  differ  from  the 
original  plans  and  specifications  in  material  respects,  and  the  con- 
tractor has  agreed  to  perform  the  work  according  to  detail  draw- 
ings to  be  prepared  and  directions  to  be  given  by  the  engineer,  he 
can  be  required  to  do  so  and  without  extra  remuneration;  but  it 
is  submitted  that  the  working  drawings  and  directions  must  con- 
form reasonably  with  the  original  plans  and  specifications. 

21.  Work  and  Materials  Rejected  by  Engineer. — Frequently  the 
specifications  require  that  materials  and  work  may  be  rejected  by 
the  engineer  and  inspector,  if,  in  their  opinion,  they  do  not  conform 
strictly  to  the  specifications.  If  work  and  materials  do  conform 
to  the  specifications  and  are  rejected  by  the  inspectors  or  engineers, 
the  question  arises  as  to  which  will  control  and  to  what  extent 
the  power  of  the  engineer  in  rejecting  or  accepting  materials  will 
bind  the  contractor  or  the  owner.  If  the  engineer  has  been  given 
the  full  power  of  an  arbitrator  or  an  umpire,  and  his  conclusion 
is  made  final  and  conclusive  upon  the  parties,  it  is  well  settled  in 
England  and  in  many  of  the  United  States  that  his  decision  will 
control.  If  he  accept  inferior  or  defective  materials,  the  owner 
must  pay  for  them,  and  if  he  reject  good  and  substantial  materials 
the  contractor  must  supply  other  better  materials.  This  rule  re- 
quires that  the  contractor  shall  secure  the  acceptance  of  materials 
before  using  the  same.  If  materials  are  rejected  the  engineer  must 
be  specific  in  describing  the  defects,  so  that  the  contractor  can 
remedy  them.  A  notice  to  a  contractor  that  certain  parts  of  a  struc- 
ture are  "worthless  and  dangerous,  not  fit  for  use,  liable  to  cause 
damage,  and  their  construction  in  direct  violation  of  the  contract," 
without  specification  of  the  nature  of  the  alleged  defects,  has  been 
held  insufficient  to  require  a  contractor  to  replace  such  parts  or  to 
defeat  his  right  to  recovery. 

When  a  certain  kind  of  stone  was  specified  and  was  used  upon 
the  work  and  it  was  afterwards  found  defective,  the  contractor 
recovered  the  contract  price,  it  not  being  shown  that  the  defect 
was  in  the  workmanship.  The  same  has  been  held  of  sand  used 
which  was  particularly  described  and  designated.  If  a  builder  give 
notice  of  the  poor  quality  of  materials,  and  the  work  is  carried 
on  under  the  eyes  of  the  owner,  he  may  not  refuse  to  pay  for  the 
work  because  the  structure  is  so  affected  by  the  weather  as  to 
prove  worthless.  The  use  of  brick  made  of  inferior  clay,  in  good 
faith,  by  the  contractor,  the  defective  condition  not  being  discov- 


NOTES  ON  THE  LAW  OF  CONTRACTS.        141 

ered  by  careful  inspection,  but  developing  only  after  exposure 
to  the  weather,  will  not  defeat  the  contractor's  right  to  recover. 
So,  too,  when  the  owner  specifies  certain  brands  of  materials  or 
a  manufactured  product  by  the  trade  name,  and  then  arbitrarily 
confines  the  contractor  to  such  materials,  the  owner  takes  the  respon- 
sibility of  any  inherent  defects  which  may  develop  subsequently  and 
which  are  not  discovered  under  ordinary  inspection. 

22.  Defective   Work   and   Materials   Accepted    ~by   Engineers. — 
If  engineers  or  inspectors  are  clothed   with  authority  to   construe 
and  determine  the  meaning  of  the  specifications  and  the  plans,  and 
have  the  power  to  accept  or  reject  materials  and  workmanship,  and 
the  structure   has  been  accepted   and  the  contract  fully   executed, 
and  no  fraud  has  been  practiced  by  the  contractor,  it  is  well  settled 
that  the  owner  or  company  can  have  no  recovery  against  the  con- 
tractor for  defective  work  or  materials.     It  was  held  when  excava- 
tions and  foundations  were  to  be  made  for  a  structure  under  the 
instruction  and  to  the  approval  of  an  architect,  that  the  contract 
was  performed  whether  the  work  had  been  done  in  conformity  to 
the  drawings  or  not.     It  was  held  that  when  machinery  for  a  steam- 
boat  was  required   to  be  of  the  best  material  throughout  and  of 
first-class  workmanship,  subject  to  the  inspection  of  the  company's 
superintendent,  who  had  the  right  to  reject  anything  not  equal  to 
the  requirements  of  the  contract,  and  every  facility  was  afforded 
the  inspector  to  inspect  the  work  and  materials,  that  the  company 
could  not  recover  from  the  contractor  for  injuries  resulting  from 
the  failure  of  the  steamboat.     Likewise  it  has  been  held  that  a  con- 
tract to  construct  a  wharf  according  to  plans  and  specifications  fur- 
nished by  the  company,  who  saw  the  work  during  its  progress  and 
until  completion,  that  no  recovery  could  be  had  from  the  contractor 
because    the   structure    was    defective   and    injuries    resulted.     The 
same  has  been  held  of  a  bridge  erected  and  completed  pursuant  to 
the   directions  of  an   engineer  in  substantial  compliance  with  the 
plans. 

23.  Acceptance  of  Structure. — The  above  cases  are  cases  where 
the  decision  of  the  engineer  or  architect  had  been  made  binding  upon 
the  parties  to  the  contract.     It  has  been  held  that,  if  such  be  not 
the    case,    his   acceptance    of   inferior    materials   will    not  bind    the 
owner   nor  relieve  the  contractor  from  performing  his   agreement 
in  strict  compliance  with  the  contract.     It  has  also  been  held  that 
the  work  must  have  been  accepted  in  order  to  conclude  the  owner; 
that  the  payment  of  progress  certificates  did  not  constitute  a  waiver 
of  defects  in  quality  which  were  not  apparent  from  inspection. 


142  SPECIFICATIONS  AND   CONTRACTS. 

If  the  contractor  be  subject  to  the  direction  of  the  engineer  in 
charge  and  his  decision  is  made  final  and  conclusive,  and  the 
quality  of  materials  furnished  and  the  manner  of  doing  the  work 
are  specified,  the  contractor  is  not  responsible  for  defects  of 
the  work  as  a  whole,  if  he  has  complied  with  the  architect's  direc- 
tion. The  engineer's  failure,  however,  to  object  when  work  does 
not  conform  to  the  contract  and  specifications,  does  not  show  acqui- 
escence in  such  work  or  in  the  use  of  parts  or  members  of  a 
structure  which  are  smaller  or  of  different  dimensions  than  those 
specified  in  the  contract. 

When  it  is  provided  that  the  materials  shall  be  strictly  in 
accordance  with  the  plans  and  specifications,  and  that  a  person 
appointed  shall  inspect  and  accept  such  materials  as  he  may  deem 
proper,  it  has  been  held  that  a  difference  of  opinion  between  the  con- 
tractor and  the  inspector,  as  to  whether  or  not  the  materials  con- 
formed to  the  plans  and  specifications,  was  an  incident  contemplated 
by  the  terms  of  the  contract,  and  that  the  rejection  of  materials  in 
good  faith  by  the  inspector  gave  no  ground  for  damages  to  the  con- 
tractor, even  though  the  rejected  material  did  conform  to  the  specifi- 
cations and  plans. 

24.  Contract  must  be  Construed  as  a  Whole. — Whether  or  not 
the  specifications  or  the  determination  of  the  engineer  shall  control 
must  be  determined  from  the  whole  contract,  and  the  stipulations 
granting  such  powers  must  be  read  in  the  light  of  the  rest  of  the 
contract,  and  the  powers  of  the  engineer  must  be  exercised  in  accord- 
ance with  the  understanding  of  the  parties  as  outlined  in  the  con- 
tract. Much  is  often  left  to  the  engineer's  discretion  and  judg- 
ment, but  so  far  as  the  contract  and  specifications  show  an  evident 
intention  to  limit  the  engineer's  discretion  and  to  fix  the  quality 
and  character  of  the  work  and  its  execution,  so  far  will  the  engineer 
be  bound  to  follow  the  specifications  and  the  plans.  His  duty  is 
first  to  determine  the  conformity  of  things  with  the  specifications 
and  the  requirements  of  the  contract,  and  as  to  the  rest,  to  consult 
his  own  discretion  and  good  judgment.  He  must  decide  whether 
work  has  been  executed  in  a  manner  and  to  a  degree  of  perfection 
promised  or  demanded  in  the  contract.  He  cannot  dispense  with 
the  performance  of  a  substantial  part  of  the  work;  he  may  decide 
whether  work  has  been  executed  in  a  workmanlike  manner,  if  the 
materials  are  the  kind  required;  but  it  cannot  be  contended  that  the 
engineer  can  accept  something  unlike  that  which  is  called  for,  even 
though  it  is  substantially  built  and  for  all  practical  purposes  as 


NOTES  ON  THE  LAW  OF  CONTRACTS.        143 

good  or  even  better  than  the  structure  specified  in  the  contract. 
However  conclusive  the  engineer's  decision  may  be  made,  or  how- 
ever closely  the  contractor  is  to  follow  his  instructions  in  all  things, 
that  will  not  justify  a  departure  from  the  express  terms  of  the  con- 
tract. An  acceptance  by  the  engineer  of  a  different  class  of  work 
or  of  inferior  materials  will  not  bind  the  owner,  nor  will  it  relieve 
the  contractor  from  his  agreement  to  perform  according  to  plans 
and  specifications. 

25.  Conflict  Between  Specifications  and  the  Judgment  of  the 
Contractor. — Frequently  the  contractor  is  made  responsible  for  the 
maintenance  and  repair  of  work  and  for  its  stability,  and  at  the 
same  time  he  is  also  required  to  follow  the  specifications  and  plans. 
The  question  arises  as  to  how  far  the  contractor  must  follow  the 
plans  and  specifications  when  in  his  best  judgment  the  work  will 
not  be  stable  or  meet  the  requirements  as  to  maintenance,  strength 
and  durability.  Here,  as  in  other  cases,  it  is  a  question  of  intention. 
The  courts  will  look  to  the  instruments  to  determine  the  intent. 
In  such  cases  the  question  is,  "Does  the  contractor  warrant  that  the 
specifications  and  plans  are  sufficient  to  effect  such  a  result  as  he 
will  be  able  and  willing  to  maintain  for  the  purposes  intended,  and 
for  the  period  named?"  Suppose,  for  instance,  a  contractor  under- 
takes to  build  a  bridge  in  accordance  with  the  specifications,  plans 
and  directions  of  an  engineer,  and  the  engineer  directs  what  founda- 
tions shall  be  built,  under  the  protest  of  the  contractor  "that  said 
foundations  are  insufficient  and  will  not  support  the  structure." 
Suppose  the  foundations  are  built  according  to  the  orders  and  direc- 
tions of  the  engineer,  and  the  structure  fails.  Is  the  contractor 
liable  to  reconstruct  the  foundations  and  the  structure,  or  will  the 
owner  be  required  to  pay  for  the  work  done  in  the  manner  required? 
Such  a  case  is  usually  determined  by  deciding  first  if  the  contractor 
was  to  build  and  furnish  a  completed  structure,  or  only  to  furnish 
work  and  materials  for  the  structure.  The  courts  distinguish  an 
undertaking  to  provide  and  furnish  a  complete  structure  from  one  to 
furnish  work  and  materials  at  a  unit  measure,  or  those  cases  where 
different  kinds  of  work  are  parceled  out  to  several  different  con- 
tractors. If  a  completed  structure  is  to  be  furnished,  then  a  con- 
tractor is  usually  held  liable  to  build  and  deliver  over  such  a  com- 
plete structure  and  to  be  responsible  for  the  maintenance  and  repair 
of  a  structure  for  a  definite  period;  and  the  courts  hold  that  the 
contractor  adopts  and  approves  the  plans  and  specifications  by 
which  the  structure  is  to  be  built.  This  again  brings  up  the  subject 
of  liability  for  a  structure  whose  failure  is  due  to  defective  or 


144  SPECIFICATIONS   AND    CONTRACTS. 

insufficient   plans,    and   what   lias   been    said    on   that   subject   will 
apply  here. 

26.  Conflict   of  Specifications   with  Work   and  Materials   Fur* 
nished  ty  the  Co-Contractors. — Sometimes  work  done  by  other  con- 
tractors does  not  comply  with  the  specifications,  and  the  stability, 
strength  or  durability  of  the  structure  may  depend  upon  such  con- 
dition.    If  a   post-contractor  has  warranted   the  stability,  strength 
or  durability  of  the  structure,  the  question  arises  if  he  should  make 
the  defective  work  good.     The  economy  and  quality  of  the  painter's 
work  often  depend  upon  the  work  done  by  the  carpenter,  and  the 
masonry  work   often    depends   on   the   stonecutter's   work,   and   the 
stability  of  a  building  may  depend  upon  the  foundations  put  in  by 
a  prior  contractor,  and  the  success  and  satisfactory  completion  of 
almost  any  job  depends  in  a  degree  on  the  skilful  performance  of 
work  by  other  contractors  or  material  men.     Frequently  the  ques- 
tion  arises   in   doing  masonry   work   as  to  who   shall   furnish   the 
centers  for  the  arches;   whether  the  mason  or  the  carpenter  shall 
supply  them.     The  obligation  of  each  contractor  is  usually  an  obli- 
gation to  the  owner,  and  there  are  no  relations  between  the  several 
contractors  except  such  as  are  created  in  the  contract.     If,  there- 
fore, one  contractor  is  under  no  obligations  to  another  contractor, 
his  obligation  lies  to  the  owner.     His  only  remedy,  therefore,   for 
defective  work  is  against  the  owner,  and  it  therefore  becomes  the 
obligation  of  the  owner  to  enforce  contract  obligations  against  each 
and  every  contractor.     If  the  owner  does  not  enforce  such  obliga- 
tions and  if  he  does  not  require  that  each  shall  do  his  work  skilfully 
and  completely,  then  Tie  should  l)e  held  liable  to  other  contractors 
for  any  damages  which  they  may  suffer  by  reason  of  the  acts  of 
co-contractors  or  material  men. 

Sometimes  the  owner  himself  is  to  furnish  the  materials  for 
certain  parts  of  the  work.  If  the  owner  is  to  furnish  the  mate- 
rials, as  the  steel  and  iron  for  a  frame  structure,  and  the  con- 
tractor is  to  forge,  assemble  and  rivet  such  materials  into  a  com- 
plete structure,  and  the  materials  do  not  conform  to  the  specifica- 
tions, the  question  arises  whether  the  contractor  is  liable  for  the 
failure  of  the  structure  and  if  the  contractor  has  not  waived  his 
rights  by  failing  to  protest  against  the  use  of  inferior  materials. 

27.  Work  to  Specifications  and  Satisfaction  of  Owner. — When 
work  is  to  be  completed  to  the  satisfaction  of  the  owner  or  employer, 
and  specifications  have  been  prepared,  or  a  certain  result  is  to  be 
obtained  which  has  been  defined  and  described,  and  the  work  has 
been  completed  according  to  such  specifications  or  in  such  a  manner 


NOTES  ON  THE  LAW  OF  CONTRACTS.        145 

as  to  accomplish  the  result,  the  question  arises  if  the  owner  must 
be  satisfied.  If  the  contractor  has  covenanted  to  do  the  work  and 
to  satisfy  the  owner,  he  cannot  be  said  to  have  fulfilled  his  con- 
tract until  he  has  satisfied  his  employer.  But,  the  owner  might 
unreasonably,  unfairly  and  fraudulently  refuse  to  declare  his  satis- 
faction, and  thus  defeat  the  contractor  from  recovering  for  his  labor 
and  materials.  This  the  law  will  not  allow,  especially  if  the  struc- 
ture be  erected  upon  the  land  of  the  owner  or  employer  and  to  his 
benefit  and  cannot  be  removed.  It  would  be  unreasonable  and 
unjust  if  the  contractor  should  be  denied  a  recovery  for  the  reason- 
able value  of  his  work  and  materials,  or  at  least  for  so  much  as  he 
has  'benefited  the  owner  or  employer.  The  law,  or  the  court,  there- 
fore implies  a  contract  and  imposes  upon  the  owner  a  promise  to 
pay  to  the  contractor  so  much  as  he  has  been  benefited. 

When,  however,  the  labor  and  materials  have  been  wrought  into 
a  chattel  or  an  article  which  can  be  retained  or  returned  to  the 
contractor,  a  different  rule  has  been  adopted.  If  the  owner  declare 
himself  dissatisfied  and  return  the  chattel  to  the  contractor,  it  has 
been  held  that  no  recovery  could  be  had,  the  contractor  having 
failed  to  perform  his  obligation  to  please  or  satisfy  his  employer. 
When  the  work  or  materials  have  been  incorporated  into  a  bridge 
or  a  house,  which  by  virtue  of  its.  permanent  character  has  become 
attached  to  the  land  of  the  owner,  the  courts  hold  that  if  the  work 
has  been  done  according  to  the  plans  and  specifications  prepared 
and  submitted  by  the  owner,  it  should  and  must  be  to  his  reason- 
able satisfaction,  and  that  therefore  he  must  recompense  the  con- 
tractor. The  courts  hold  in  such  cases  that  the  work  need  be  com- 
pleted only  to  the  owner's  reasonable  satisfaction.  When,  there- 
fore, a  contractor  was  to  receive  for  a  public  work  "whatever  the 
board  might  allow  as  right  and  proper,"  it  was  held  that  the  con- 
tractor could  sue  for  his  reasonable  compensation,  even  though  the 
board  had  tendered  to  him  what  it  considered  right  and  proper; 
and  when  an  employee  was  to  be  paid  whatever  he  saw  fit  to  charge, 
it  was  held  he  could  not  make  his  charge  unreasonable. 

The  owner's  dissatisfaction  must  be  in  good  faith,  and  he  can 
take  into  consideration  only  the  performance  of  the  terms  of  the 
contract.  He  may  not  require  materials  not  contracted  for,  and  his 
privilege  must  be  exercised  in  a  reasonable  manner;  not  arbitrarily 
nor  capriciously,  for  the  purpose  of  defeating  the  contractor's 
recovery. 

28.  Application  of  Specifications  to  Extra  Work. — A  provision 
that  is  often  omitted  in  contracts  and  which  is  at  times  of  impor- 


146  SPECIFICATIONS   AND    CONTRACTS. 

tance,  is  one  that  requires  extra  work,  or  "extras,"  to  conform  to 
the  specifications  and  plans.  Extra  work,  strictly,  is  work  outside 
of  and  not  included  in  the  contract.  Clauses  which  require  mate- 
rials and  work  to  be  done  to  the  engineer's  acceptance  have  been 
frequently  and  generally  held  not  to  apply  to  extra  work.  For- 
tunately, the  question  is  not  often  raised,  because  it  is  a  foregone 
conclusion  among  contractors  and  engineers  that  when  the  inten- 
tion is  manifest  in  the  contract  to  require  good,  substantial  work 
and  to  employ  materials  of  good  quality  and  make,  and  that  the  job 
or  structure  shall  conform  throughout  to  good  workmanship,  it  is  a 
natural  inference  that  the  specifications  for  such  work  shall  apply 
to  the  extra  materials  and  work,  and  this  would  be  a  reasonable 
construction  for  the  courts  to  apply;  but  the  courts  do  not  imply 
warranties  as  to  stability,  strength  and  durability  to  extra  work  not 
mentioned  and  provided  for  in  the  contract  and  specifications. 

This  fact,  however,  does  not  excuse  the  contractor  for  doing 
or  furnishing  extra  work  and  materials  that  are  defective  and  not 
suitable  to  the  purposes  for  which  they  are  intended.  The  general 
presumption  of  law  that  "an  undertaking  to  furnish  materials  and 
do  work  requires  the  contractor  to  furnish  such  as  shall  accomplish 
the  purpose  for  which  they  are  intended,"  applies  as  well  to  extra 
work  undertaken  as  it  does  to  general  work.  Therefore,  when  in 
the  construction  of  a  house  a  contractor  is  asked  to  build  the  foun- 
dations and  walls  of  a  cistern,  and  he  uses  the  same  proportions  of 
cement,  sand  and  stone  for  concrete  as  was  used  in  the  foundations 
of  the  building,  it  has  been  held  that  he  is  liable  for  the  defective 
and  leaky  condition  of  the  cistern,  and  can  not  excuse  his  failure 
to  make  it  tight  by  explaining  that  he  has  followed  the  contract 
and  specifications  in  making  concrete  for  the  cistern.  If  the  work 
had  been  done  under  the  eyes  of  the  inspectors  and  architect  and 
with  their  knowledge  and  approval,  it  is  doubtful  if  the  contractor 
would  have  been  held  liable  for  the  defective  condition  of  the 
cistern. 

29.  General  Rules  of  Construction. — Throughout  the  discus- 
sion and  application  of  these  rules  or  decisions,  it  should  be  con- 
stantly borne  in  mind  that  in  all  cases  of  conflict  it  is  a  question  of 
intention  of  the  parties  which  will  be  determined  by  the  court  after 
a  due  and  proper  consideration  of  all  the  terms  of  the  contract 
and  specifications,  and  the  circumstances  surrounding  the  parties 
at  the  time  they  entered  into  the  contract,  and  of  the  practical  con- 
struction which  the  parties  themselves  have  placed  upon  the  con- 


/  OF  THE  A 

[    UNIVERSITY  ) 

\.  of  J 

'X^yro^^tX 

NOTES  ON  THE  LAW  OF  CONTRACTS.        147 

tract   during   its   performance.    The   intention   ascertained,    it   will 
prevail  in  all  cases. 

30.  Relative  Length  of  Parts  of  Contract. — In  connection  with 
this  the  relative  length  of  the  contract  and  specifications  has  been 
the   subject  of   much   discussion  in   engineering   and   architectural 
circles.     It  is  really  of  little  or  no  importance,  and  the  question 
should  be  determined  by  the  universal  rule  that  all  legal  documents 
should  be  made  as  brief  and  as  clear  as  is  possible.     The  length  of 
the  contract  or  the  specifications  should  be  determined  solely  and 
entirely  by  the  detail  and  care  with  which  the  parties  and  their 
engineer  define  their  intention,  and  that  will  depend  largely  upon 
their  ability  to  use  good,  pure  English.     The  intention  should  first 
be  determined,  and  then  it  should  be  clearly,  plainly  and  briefly 
expressed.     If  the  engineer  be  painstaking,  conscientious  and  given 
to   detail,   the   specifications   will  be   very   lengthy,   and   if  he  who 
prepares  the  contract  be  concise  and  confident,  his  character  will 
be  reflected  in  the  contract,  and  it  will  be  proportionately  abbre- 
viated.    It  will  depend  largely  upon  the  personal  equation  and  the 
experience  of  the  party  who  prepares  the  instrument. 

31.  When  the  Intention  is  not  Expressed. — The   intention  of 
the  parties  should  be  fully  expressed.     If  it  be  not,  then  the  parties 
are  likely  to  be  bound  by  what  is  known  as  custom  and  usage,  or 
the  common  practice,  and  this  may  not  be  what  the  owner  or  the 
engineers     contemplated.    The     constant     struggle    between     con- 
tractors and  engineers,  the  former  to  have  a  good  and  workman- 
like job  and  the  latter  to  have  a  superior  and  exceptional  piece  of 
work,   keeps   the   standard   of   excellence   low.    Custom   and   usage 
when  the  specifications  are  not  definite  would   probably  be  deter- 
mined by  the  contractor,  the  builder  and  the  mechanics  who  work 
for  and  under  him,  which  would  make  the  standard  probably  infe- 
rior  to   what   the   owner    and   the   engineer   want.    Unfortunately, 
engineers  are  not  so  ready  and   willing  to  assist  one  another  in 
establishing  a  high  standard  of  work,  nor  have  jurymen  so  much 
confidence  in  the  theoretical  training  of  engineers  as  they  have  in 
the  ordinary  practical  mechanic  who  is  a  layman  like  themselves 
and  who  has  their  sympathy.     Jurymen  are  likely  to  be  tradesmen, 
mechanics  and  material  men,  who  favor  contractors  in  the  recovery 
for  materials  and  labor  which  they  have  bestowed  upon  structures, 
and  the  benefit  of  which  the  owner  has  had  and  keeps.     In  such 
cases   contractors   have   a  superior   advantage   when   they   seek   to 
recover  for  work  which  they  have  done  or  for  materials  which  they 
have  supplied. 


148  SPECIFICATIONS   AND    CONTRACTS. 

It  therefore  behooves  the  engineer,  whose  duty  it  is  not  only  to» 
protect  the  interests  of  his  employer,  the  owner,  but  also  to  do 
justice  to  the  contractor,  to  draw  his  specifications  and  to  make  his 
plans  with  extreme  care,  so  that  his  intention  may  not  be  misun- 
derstood, even  though  the  parties  endeavor  to  misconstrue  them. 

32.  Specifications  and  Plans  should  Provide  for  a  Result. — 
Specifications  and  plans  should  provide  for  a  result  or  a  completed 
structure.  They  should  not  aim  merely  to  secure  the  supply  of 
materials  and  labor.  They  should  be  so  complete  as  to  require 
nothing  from  the  engineer  or  architect  but  a  fair  interpretation  and 
explanation,  and  which,  among  persons  familiar  with  the  kind  or 
character  of  work  which  is  described,  can  reasonably  receive  but 
one  interpretation.  If  the  specifications  be  not  complete  and  do  not 
embody  such  direction  and  control  as  shall  fix  and  determine  fully 
what  the  contractor  is  to  do  and  how  it  is  to  be  done,  and  the 
owner  or  his  engineer  or  architect  is  required  to  assume  direction 
and  control  of  the  contractor  and  his  employees,  then  the  contractor 
ceases  to  be  an  independent  contractor,  and  he  and  his  employees 
become  the  servants  of  the  owner,  who  may  be  held  responsible  for 
their  acts  or  negligence.  Such  relations  of  the  parties  are  to  be 
avoided,  as  it  is  one  of  the  principal  objects  in  letting  work  to  con- 
tractors to  avoid  the  responsibility  due  to  the  acts  and  negligence 
of  the  contractor  and  his  servants.  It  is  a  well-established  principle 
of  law  that  the  owner  cannot  reserve  the  control  and  direction  of 
the  contractor  without  assuming  the  responsibility  for  his  acts.  It 
is  therefore  recommended  that  the  contract  shall  not  bestow  the 
direction  or  control  on  the  engineer,  but  that  the  specifications  and 
plans  shall  so  clearly  and  explicitly  define  what  is  required  of  the 
contractor  that  the  engineer  or  architect  shall  only  have  to  define 
and  interpret  such  specifications  and  plans.  To  accomplish  this, 
the  engineer  is  usually  given  the  power  to  interpret  and  explain 
the  plans  and  specifications,  as  where  there  are  apparent  omissions. 
or  conflict  between  the  several  parts  of  the  specifications  themselves 
or  between  the  specifications  or  the  plans  and  the  contract. 

33.  Dividing  Work  among  Several  Contractors. — In  the  prepa- 
ration of  specifications  a  word  might  be  said  as  to  the  practice,  par- 
ticularly of  architects,  of  letting  work,  as  that  of  the  erection  of  a 
building,  to  several  contractors,  as  to  a  mason  contractor,  a  car- 
penter, a  plasterer,  a  plumber,  an  electrician  and  an  ornamental 
iron-worker.  This  practice  the  author  deplores,  and  congratulates 
the  engineering  profession  that  it  has  not  fallen  into  this  practice, 
which  he  regards  as  an  evil.  Such  a  contract  puts  it  within  the 


NOTES  ON  THE  LAW  OP  CONTRACTS.        149 

power  of  the  several  contractors  to  get  in  one  another's  way,  to 
damage  and  destroy  one  another's  work  and  generally  to  delay  the 
ultimate  completion  of  the  building.  Engineers  sometimes  divide 
the  subject-matter  of  a  contract  into  several  independent  stages, 
with  good  results.  The  foundation  of  a  structure  may  be  provided 
and  furnished  by  one  contractor  and  the  superstructure  by  another, 
as  for  a  bridge  or  even  for  a  building.  So,  frequently,  the  grading, 
the  foundations  for  structures,  the  track  and  bridges  and  buildings 
of  a  railroad  may  be  profitably  and  reasonably  let  in  four  or  five 
contracts;  but  they  are  contracts  which  mark  separate  stages  of  the 
progress  of  the  work,  where  the  several  contractors  are  not  upon 
or  in  charge  of  the  work  at  the  same  time,  and  where  they  will  not 
interfere  one  with  another  or  destroy  one  another's  work.  Two 
excuses  are  usually  made  for  subdividing  the  work  of  a  structure, 
as  a  building,  among  several  tradesmen  or  foremen-mechanics;  one, 
that  it  saves  to  the  owner  the  contractor's  profit;  and  two,  that  it 
enables  the  owner  or  architect  to  select  the  best  master  mechanics 
for  the  different  branches  of  the  work  undertaken.  It  is  the  author's 
experience  that  the  owner  does  not  secure  either  the  advantage 
promised  or  the  saving  hoped  for.  Master  mechanics  will  not  gen- 
erally give  to  owners  the  low  prices  that  they  will  to  employing 
contractors,  and  it  will  frequently  be  found  that  the  selection  of 
master  mechanics  is  made  by  the  architect,  who  sometimes,  at  least, 
profits  indirectly  and  unknown  to  the  employer,  he  having  his 
favorites  among  mechanics  and  material  men,  which  favoritism  is 
sometimes  cultivated  to  the  extent  of  receiving  commissions,  engag- 
ing in  business  enterprises  and  accepting  gratuities  wholly  unknown 
to  the  employer  or  owner.  Another  objection  is  that  the  owner  is 
deprived  of  the  knowledge  and  experience  of  an  employing  con- 
tractor, who  looks  at  the  situation  from  the  standpoint  and  with 
the  eye  of  all  the  trades  employed  upon  the  job,  while  the  practice 
of  dividing  it  up  into  numerous  contracts  and  among  the  several 
tradesmen  or  master  mechanics  gives  to  the  owner  only  the  separate 
and  individual  views  and  experiences  of  the  several  mechanics  or 
tradesmen. 

34.  Work  at  Cost  plus  a  Percentage  or  a  Fixed  Sum. — Of  late 
years  much  work  has  been  undertaken  and  done  at  a  price  denomi- 
nated cost-plus-a-fixed-sum  or  cost-plus-a-percentage,  an  example  of 
which  contract  is  furnished,  introducing  many  conditions  and  cir- 
cumstances attending  such  an  undertaking.  If  the  owner  and  the 
engineer  have  explicit  confidence  in  the  contractor  or  superin- 
tendent who  undertakes  the  work,  such  a  practice  is,  without  doubt, 


150  SPECIFICATIONS   AND   CONTRACTS. 

the  fairest  and  best  for  both  the  owner  and  the  contractor.  It 
avoids  paying  extraordinary  prices  to  insure  contingencies,  acci- 
dents and  misfortunes  which  the  contractor  will  certainly  make  a 
part  of  his  contract  prices,  and  it  gives  to  the  owner  a  lower  per- 
centage of  profit  in  consideration  of  his  assuming  the  risks  than 
the  contractor  would  be  content  with  if  he  assumed  the  risks  of 
the  work.  On  the  other  hand,  the  contractor  is  relieved  of  the 
anxiety  and  unforeseen  obstructions  and  the  extraordinary  condi- 
tions attending  the  foundations  and  the  ordinary  risks  of  nature, 
as  well  as  of  labor  and  other  organizations. 

Such  a  plan,  however,  with  the  dishonest  contractor  would  be 
a  burden  to  an  owner  or  employer.  Unfortunately,  a  practice  has 
grown  up  among  contractors,  manufacturers  and  material  men  of 
secretly  allowing  and  paying  commissions  to  sub-contractors,  agents, 
and  even  engineers,  by  which  the  actual  cost  of  work,  with  the 
usual  trade  discounts,  may  be  increased  from  5  to  25  per  cent.  If 
a  contractor  were  so  disposed,  he  could  fairly  prove  the  actual  cost 
of  the  work  much  more  than  it  would  be  if  he  gave  to  the  owner 
the  benefits  of  low  prices  and  discounts  to  which  he  is  ordinarily 
entitled.  Owners  sometimes  seek  to  meet  sharp  practices  of  dis- 
honest contractors  by  paying  the  bills  for  materials  and  the  pay- 
rolls for  labor  themselves  directly,  but  this  does  not  obviate  the 
evil  practice,  as  the  system  of  rebates  is  in  vogue  among  con- 
tractors, material  men  and  manufacturers,  as  well  as  between 
manufacturers  and  transportation  companies.  With  a  competent, 
honest  and  conscientious  superintendent  or  contractor  in  charge 
of  work,  the  system  of  cost-plus-a-fixed-sum,  or  cost-plus-a-percentage 
of  the  cost,  has,  without  doubt,  very  many  advantages,  and  usually 
results  in  great  economy  to  the  owner.  This  is  especially  true  in 
new  construction,  such  as  armored  or  reinforced  concrete,  at  the 
present  day.  The  percentages  or  commissions  paid  to  contractors 
under  such  contracts  vary  from  2%  to  15  per  cent,  depending  upon 
the  character  and  size  of  the  work. 

CONTRACTS. 

35.  Contracts;  Subdivisions,  Covenants  and,  Specifications. — 
Two  things  usually  determine  the  subdividing  of  the  Contract  into 
covenants  and  specifications.  One,  a  desire  to  prepare  a  general 
form  of  contract  which  may  be  used  throughout  the  various  depart- 
ments or  bureaus  and  which  shall  be  serviceable  and  apply  to  any 
and  all  structures  undertaken;  another  is  the  desire  to  have  the 
specifications  contain  and  embody  all  those  things  and  matters 


NOTES  ON  THE  LAW  OP  CONTRACTS.        151 

which  pertain  to  the  actual,  physical  construction,  erection  and 
completion  of  the  work.  The  latter  form  is  usually  adopted  for 
individual  pieces  of  work  or  for  similar  structures,  of  which  several 
are  to  be  built  under  different  contracts.  In  either  case,  the  Con- 
tract will  usually  contain  the  general  covenants  pertaining  to  the 
liability  of  the  contractor,  the  consideration  for  his  undertaking, 
the  manner,  time  and  method  of  payment,  provisions  covering  lia- 
bility for  accidents,  negligence  and  for  default  or  delay  on  the  part 
of  the  contractor  or  the  owner.  The  contract  will  also  contain 
provisions  against  subletting,  the  filing  of  liens  and  the  failure  to 
make  payments  for  claims  of  material,  men  and  laborers.  It  will 
provide  for  notices  and  contain  those  provisions  required  by  statute 
laws  of  the  state  or  the  charter  of  the  municipality,  such  as  those 
providing  for  compliance  with  the  labor  law,  the  lien  law,  the 
giving  of  bonds,  the  filing  of  the  contract,  the  compliance  with 
ordinances  and  laws  for  the  safety  of  tfte  public,  and  police  regula- 
tions. The  contract  should  also  contain  the  description  of  the  par- 
ties, their  residence,  domicile,  and  the  laws  under  which  they  exist. 
The  contract  should  also  contain  references  to  such  other  instru- 
ments, ordinances  and  franchises  as  are  intended  to  be  made  part  of 
the  contract,  including  the  specifications,  plans  and  special  acts  of 
the  legislature  or  other  public  body  under  and  by  virtue  of  which  the 
contract  is  made  and  carried  out.  If  the  contract  be  prepared  for 
several  bureaus  or  departments,  and  the  several  structures  or  pieces 
of  work  which  are  to  be  undertaken  under  it  are  authorized  by 
separate  acts  of  the  legislature  or  of  the  board  of  aldermen,  then 
these  special  authorizations  are  better  embodied  and  made  a  part 
of  the  specifications  which  describe  and  specify  the  particular  public 
improvement  or  work  which  has  been  authorized.  In  fact,  in  such 
cases  it  were  better  that  all  matters,  provisions  and  stipulations 
pertaining  to  a  particular  piece  of  work  should  be  embodied  in  the 
particular  description  of  that  work,  which  is  the  specifications.  It 
is  bad  practice  to  repeat  clauses  and  provisions  in  the  several  parts 
of  the  same  instrument,  unless  they  be  made  in  the  same  language 
and  applied  to  the  same  structure  and  to  the  same  circumstances 
and  conditions  in  each  instrument,  as  such  a  practice  leads  to  con- 
fusion and  conflict  which  may  be  detrimental  to  the  interests  of 
either  party. 

36.  Extra  or  Additional  Work. — Extra  or  additional  work  is 
the  contractor's  aim  and  the  owner's  fear.  Drastic  provisions  are 
written  and  inserted  in  contracts  to  avoid  additional  or  extra  work, 
especially  where  the  contractor  is  to  furnish  for  a  lump-sum  price  a 


152  SPECIFICATIONS   AND    CONTRACTS. 

•completed  structure.  Contractors  sometimes  take  work  for  the  fair 
and  reasonable  cost  thereof,  without  profit,  in  anticipation  that  the 
extras  of  the  job,  at  handsome  prices,  will  afford  them  their  profits. 
This  is  especially  true  where  contracts  are  let  after  competitive  bid- 
ding. The  usual  provision  is  that  no  allowances  or  payments  will 
"be  made  on  account  of  any  additional  or  extra  work,  unless  the 
same  be  ordered  in  writing  by  the  owner  and  the  price  agreed  upon 
at  the  time  or  before  the  work  is  begun,  and  that  monthly  state- 
ments shall  be  rendered  of  such  extra  work,  under  the  title  thereof, 
"by  the  contractor  to  the  owner.  Provisions  are  written  utterly  pre- 
cluding a  contractor  from  any  recovery  whatever  for  furnishing  such 
extra  work  or  materials,  unless  said  provisions  are  strictly  complied 
with.  When  such  contract  clauses  are  inserted,  controversies  fre- 
quently arise  between  the  engineer  and  the  contractor  as  to  what 
is  or  is  not  extra  or  additional  work.  The  architect  and  owner 
refuse  to  give  such  a  written  order  or  to  determine  the  value  of 
work  done  before  it  is  undertaken.  As  a  result,  this  extra  or  addi- 
tional work  is  one  of  the  chief  sources  of  litigation  between  con- 
tractors and  owners;  and  it  usually  arises  from  the  failure  to 
properly  and  sufficiently  describe  the  work  to  be  done  by  the  con- 
tractor, or  from  overbearing  conduct  of  engineers  and  architects 
who  are  not  willing  to  acknowledge  that  they  inadvertently  over- 
looked certain  items  of  labor  or  materials  which  are  required  to 
complete  the  subject  matter  of  the  contract,  or  that  they  made 
mistakes  in  establishing  lines  and  grades  or  in  designing  the  work. 

Usually,  if  the  work  done  by  the  contractor  is  strictly  extra 
work  and  outside  of  the  contract  and  specifications  and  plans,  the 
courts  permit  him  to  recover  for  the  same,  even  though  no  written 
order  was  made,  no  price  agreed  upon  and  no  account  rendered. 
This  is  usually  allowed  from  the  fact  that  the  owner  knew  or 
ought  to  have  known  that  the  work  was  being  done,  and  that  silence 
under  such  circumstances  gives  consent. 

37.  Character  of  Extra  Work. — Provisions  for  extra  or  addi- 
tional work  should  be  drawn  with  extreme  care,  and  only  after 
the  specifications  have  been  prepared,  revised  and  reviewed,  an  :1 
after  the  engineer  is  satisfied  that  he  has  fully  described  all  the 
work  contemplated  by  the  contract.  The  intention  should  be  as 
•clear  as  to  what  is  comprised  in  the  undertaking.  Controversies 
over  extra  work  are  the  chief  source  of  litigation  in  construction 
contracts. 

Of  the  various  kinds  of  extra  work  there  might  be  mentioned 
that  due  to  omissions  from  the  specifications;  that  required  to  make 


NOTES  ON  THE  LAW  OF  CONTRACTS.        153 

alterations  and  changes  and  additions,  as  to  meet  the  conditions  of 
the  soil  or  circumstances  unforeseen  and  discovered  during  the 
progress  of  the  work;  that  required  to  correct  the  mistakes  and 
errors  of  the  engineer,  his  assistants  and  inspectors,  such  as  errors 
or  alinement,  grade  and  measurement;  that  required  for  experi- 
mentation by  the  engineer  or  architect,  as  the  adoption  of  new 
methods  or  new  materials;  that  required  to  renew  or  replace  dam- 
aged work,  whether  from  action  of  the  elements,  act  of  God  or  from 
insufficient  plans,  and  that  required  to  extend  work  to  secure  greater 
stability,  strength  or  durability. 

38.  Alterations  Affecting  the  Validity  of  a  Contract. — It  is  a 
good  practice  to  provide  that  alterations   and   changes  made   in  a 
contract  shall   not  affect  its  validity.     The  courts   have   held   that 
when  contracts  are  substantially  altered  and  in  material  respects, 
the   contract  may  be  held  to  be  abandoned.     It  is  therefore  good 
practice  to  provide  that  alterations  made  during  progress  of  con- 
struction shall  not  destroy  the  binding  effect  of  the  contract,  so  far 
as  it  is  applicable.     As  a  rule   it  is  good  practice,  when  material 
alterations,  additions  or  omissions  are  made,  to  have  that  the  sub- 
ject of  a  supplemental  contract  duly  signed  by  the  parties.     This 
obviates  any  question  as  to  the  effect  that  they  may  have  upon  the 
original  contract  and  leaves  the  situation  clear  and  unmistakable. 

39.  Time  of  Essence — Delay. — In  almost  all  construction  con- 
tracts time  is  of  essence — i.  e.,  the  structure  is  required  to  be  com- 
pleted in  a  definite  period  of  time.     Delays  are  among  the  greatest 
misfortunes  attending  construction  work.     The  delay  in  the  comple- 
tion  of   a   comparatively   unimportant   structure   on   the   line   of   a 
railroad  or  other  public  utility,  may  tie  up  hundreds  of  thousands  or 
even  millions  of  dollars'  worth  of  property  and  render  it  practically 
useless.    It  is  absolutely  essential  that  the  various  parts  of  a  public 
improvement  or  a  great  work  should  be  completed  contemporane- 
ously,   so    that   they    may    be    utilized    in    their    respective    places. 
Contracts  are  therefore  drawn  to  avoid  delays  even  of  short  periods, 
and  almost  every  device  known  is  employed  to  secure  absolutely  the 
performance  of  a  contract  within  a  stated  time.     Forfeitures,  pen- 
alties and  liquidated  damages,  bonds  and  clauses  of  abrogation  and 
cancellation  of  the  most  drastic  character  are  inserted  in  construc- 
tion contracts  to  insure  the  most  supreme  effort  on  the  part  of  the 
contractor  to  complete  the  work  within  the  time  named.     On  the 
other  hand,  on  the  part  of  the  contractor,  he  seeks  to  have  clauses 
relieving  him  from  such  covenants  in  case  of  labor  strikes,  riots 
and  internal  strife  that  are  beyond  his  control.     Manufacturers  and 


154  SPECIFICATIONS   AND   CONTRACTS. 

supply  men  who  have  a  monopoly  of  the  goods  which  they  manu- 
facture, insert  such  conditions  relieving  them  from  damages  for 
delays  caused  by  conditions  beyond  their  control,  and  the  poor 
contractor  or  master  mechanic  is  in  the  position  of  being  "between 
his  Satanic  Majesty  and  the  deep  blue  sea."  He  is  required  abso- 
lutely and  unconditionally  to  perform  the  terms  of  his  contract 
with  the  owner,  and  he  cannot,  even  by  paying  extraordinary  prices, 
secure  the  same  terms  with  the  monopolistic  material  men  and 
manufacturers.  Add  to  this  the  troubles  that  arise  with  labor 
organizations,  and  the  contractor  is  in  a  position  not  to  be  envied 
by  the  most  optimistic  business  man.  It  is  such  circumstances  that 
frequently  cause  the  insolvency  of  some  of  the  largest  contractors- 
and  builders.  The  drafting  of  clauses  that  will  secure  the  comple- 
tion of  structures  absolutely,  and  at  the  same,  time  be  fair  and 
reasonable  as  between  the  owner  and  the  contractor,  is  one  of  the 
most  difficult  of  any  that  the  engineers  are  called  upon  to  prepare. 
Other  things  should  be  considered  than  the  financial  interests  of  the 
company  or  owner,  viz.,  whether  or  not  a  fair-minded  business  man 
would  undertake  absolutely  to  furnish  the  materials  and  erect  a 
structure  complete  within  a  certain,  definite  time,  when  he  knows 
absolutely  that  it  is  impossible  to,  get  a  contract  with  the  steel  or 
bridge  companies  for  materials  with  which  the  structure  is  to  be 
erected.  The  entering  into  such  contracts  by  builders  and  con- 
tractors is  sometimes  an  act  that  makes  lawyers  and  engineers- 
question  their  sanity  or  good  faith. 

40.  Abrogation  or  Cancellation  of  Contract. — It  is  frequently 
provided  that  in  the  event  of  delay  or  certain  defaults  upon  the 
part  of  the  contractor,  the  owner  may  abrogate  or  cancel  the  con- 
tract and  complete  the  work  himself  at  the  expense  of  the  con- 
tractor; and  that  he  may  retain  any  moneys  due  and  owing  to  the 
contractor  for  that  purpose.  This  is  an  essential  clause  in  a  contract 
where  the  contractor  is  given  possession  of  the  land  or  the  structure 
by  license  or  lease  from  the  owner,  as  the  contractor  in  his  unhappi- 
ness  might  tie  up  indefinitely  the  work  and  prolong  the  construction 
of  it  almost  indefinitely.  To  meet  such  a  situation  without  the 
clause,  the  owner  would  have  to  assert  himself  forcibly,  and  would 
very  likely  find  himself  very  much  in  the  minority  with  his  engineers 
and  household  servants,  while  the  contractor  would  be  surrounded 
by  his  superintendent,  foremen  and  an  army  of  employees,  part  of 
whom  might  be  the  most  desperate  characters  known  to  the  com- 
munity. The  author  has  known  instances  where  the  owner  has 
attempted  to  abrogate  or  cancel  the  contract  and  to  shut  out  the 


NOTES  ON  THE  LAW  OP  CONTRACTS.        155 

contractor  from  the  works,  when  the  contractor  has  forcibly  taken 
possession,  proceeded  with  and  completed  the  work,  and  then  sued 
to  recover  the  full  contract  price.  Such  a  practice,  however,  is 
unusual,  and  the  provocation  must  be  great  that  would  prompt  a 
contractor  or  builder  to  assume  such  an  undertaking.  Usually  the 
failure  or  refusal  to  pay  the  contractor  in  progress  payments,  as 
promised,  is  sufficient  for  him  to  abandon  the  work;  but  when  the 
owner  does  that  he  then  subjects  himself  to  a  countersuit  for 
damages  for  breach  of  his  contract. 

41.  Abrogation  Contingent  on  Engineer's  Certificate. — Usually 
abrogation  clauses  are  made  dependent  upon  a  certificate  of  the 
engineer  that  in  his  judgment  the  contractor  has  unreasonably 
delayed  the  work  or  has  failed  and  refused  to  fulfill  in  accordance 
with  the  contract  terms;  and  the  right  to  abrogate  or  cancel  the 
contract  is  made  dependent  upon  such  a  certificate  by  the  engineer. 
This  may  seem  unreasonable  and  unfair,  especially  where  the 
engineer  is  in  the  employ  of  the  owner,  but  it  is  absolutely  necjfi&- 
sary  to  have  the  abrogation  dependent  upon  some  act  which  can  be 
taken  positively  and  unequivocally,  and  so  as  to  define  and  determine 
the  right  of  the  owner  to  abrogate  without  any  question  as  to 
whether  or  not  the  contractor  has  or  has  not  fulfilled. 

If  the  engineer  or  architect  act  unreasonably  and  fraudulently, 
the  contractor  has  his  remedy  in  court,  as  the  Halls  of  Justice  are 
always  open  to  any  claimant  who  can  show  fraud  and  collusion 
between  the  owner  and  his  agents,  architect  or  engineer.  If  the 
engineer  unreasonably  and  arbitrarily  and  in  bad  faith  give  such 
certificate,  or  makes  a  decision  against  the  interests  of  the  con- 
tractor, he  has  but  to  show  evidence  of  such  fraud  and  bad  faith 
sufficient  to  satisfy  a  jury  that  the  conduct  of  the  engineer  was 
reprehensible  or  unfair,  and  he  may  recover  whatever  damages  he 
has  suffered  by  reason  of  such  conduct,  and  usually  from  the  owner 
who  employs  the  engineer  or  architect;  sometimes  from  the  engineer 
or  the  architect  himself. 

A  contract  should  not  be  abrogated  or  cancelled  except  as  a 
last  resort,  but  in  granting  a  contractor  indulgences  and  permitting 
him  to  do  things  forbidden  by  the  contract,  and  which  are  sufficient 
grounds  for  cancellation,  the  owner  or  the  engineer  or  architect 
should  make  it  perfectly  clear  by  correspondence,  or  by  declaration 
before  witnesses,  that  the  act  or  indulgence  shall  not  be  taken  as  a 
waiver  of  the  right  to  cancel  the  contract  or  as  a  condonation  of  the 
conduct  of  the  contractor. 

42.    Waiver   of   Contract   Clauses. — This   brings    up    a    subject 


156  SPECIFICATIONS   AND    CONTRACTS. 

which  is  very  important  throughout  the  performance  of  a  contract, 
and  especially  in  the  administration  of  the  engineer's  or  architect's 
duties.  If  a  contract  provides  that  payments  shall  be  made  in  a 
certain  way  and  upon  certain  conditions  precedent,  and  they 
are  made  without  regard  to  such  events  or  conditions  precedent  not 
once  alone  but  several  times,  the  owner,  engineer  and  architect  may 
be  held  to  have  waived  the  express  provisions  of  the  contract,  and 
they  may  become  what  is  known  as  a  "dead  letter."  Great  care  should 
be  taken  to  follow  strictly  the  terms  and  requirements  of  a  contract, 
lest  the  parties,  the  contractor  as  well  as  the  owner,  be  held  to  have 
waived  certain  conditions  and  to  have  modified  the  contract  by  the 
acceptance  or  adoption  of  other  terms  changing  or  even  contradict- 
ing the  express  written  terms  of  the  contract.  If  a  contractor 
submits  to  a  construction  or  interpretation  of  provisions  of  a  con- 
tract that  are  against  his  interests,  and  performs  the  work  in 
accordance  therewith,  even  though  complaining,  but  without  making 
sufficient  protest,  he  may  not  thereafter  claim  and  recover  for  such 
work,  injuries  or  damages,  but  will  be  held  to  have  waived  the 
express  provisions  of  the  contract  and  to  have  acquiesced  in  the 
construction  adopted  or  insisted  upon  by  the  engineer.  Want  of 
knowledge  of  this  principle  of  the  law  causes  great  hardships  to 
the  contractor  or  the  owner,  who,  in  the  belief  that  he  has  a  written 
contract  defining  his  rights,  continues  to  expend  labor  and  materials 
upon  a  job,  or  consents  to  things  being  done  upon  a  structure,  in 
the  belief  that  the  fair  meaning  of  his  contract  will  be  upheld  in 
court;  and  who  afterward  finds  upon  consulting  a  competent 
attorney,  or  when  he  gets  into  court  at  trial,  that  he  has  acquiesced 
and  waived  the  express  provisions  of  his  contract  to  his  detriment 
and  loss.  Engineers  and  architects  in  their  desire  to  be  fair  and 
sometimes  to  even  assist  a  contractor  by  making  the  contract  terms 
easier,  as  sometimes  by  making  payments  ahead  of  time,  commit 
their  employer  to  a  practice  which  is  contrary  to  the  express  terms 
of  their  agreement  and  which  works  great  mischief,  not  only  by  es- 
tablishing a  waiver  of  such  terms,  but  also,  sometimes,  by  effecting  a 
discharge  and  release  of  the  contractor's  sureties. 

43.  Effect  of  Indulgences. — There  are  so  many  results  not 
anticipated  to  the  layman  that  result  from  indulgences  and  from  a 
failure  to  insist  upon  the  full  and  complete  performance  of  contract 
terms,  that  the  author  would  impress  upon  students  of  engineering 
and  architecture  that  they  should  not  consider  themselves  at  liberty 
to  relieve  the  contractor  from  the  full  performance  of  the  contract, 
to  the  letter,  unless  the  same  be  submitted  to  the  owner  or  to  his 


NOTES  ON  THE  LAW  OF  CONTRACTS.        157 

attorney  as  to  the  effect  of  such  indulgences,  omissions,  alterations 
and  changes.  The  responsibilities  will  then  be  placed  where  they 
belong,  and  the  engineer  or  architect  will  not  come  in  for  condemna- 
tion when  trouble  arises  in  consequence  thereof. 

44.  Release    of    Sureties. — Sureties    or    bondsmen    who    have 
signed  a  bond  conditioned  upon  the  performance  of  certain  things 
in  accordance  with  the  contract  and  specifications,  have  a  right  to 
insist  that  tne  owner  shall  perform  his  part  of  such  contracts  at 
the  times  and  in  the  manner  and  spirit,  in  the  contract  provided. 
If  material  changes  are  made   in  the  contract  or  material  obliga- 
tions assumed  by  the  contractor  are  changed  or  the  burden  thereof 
increased,   or  if  the   owner   does   not  perform   his   obligations  and 
exercise  all  reasonable  precautions  for  the  protection  of  the  surety, 
then   the    bondsmen   may   be   released   and    discharged   from   their 
obligation  to  the  owner.    It  should  therefore  appeal  to  the  engineer 
that  the  utmost  care  should  be  exercised  in  the  making  of  payments, 
in  the  furnishing  of  materials  and  in  making  material  changes,  that 
they  shall  not  in  any  way  affect  the  bondsmen,  or  that  the  surety's 
consent   be  obtained   before   such   payments  are  made   or   changes 
effected.     It  is  not  necessary  that  such  changes  in  the  contract  terms 
should   be   to   the   detriment  of  the   sureties;    if  they   be  material 
changes  and  be  even  to  the  benefit  of  the  sureties,  the  bondsmen 
may,  nevertheless,  be  released  and  discharged. 

45.  Penalties  vs.  Liquidated  Damages. — The  practice  of  insert- 
ing clauses  providing  for  penalties,  forfeitures  or  liquidated  damages 
is  one  that  has  been  carried  to  gross  excess.    There  is  no  excuse  for 
such   a    provision    in    a    contract    unless    actual    damages    will    be 
suffered,     and     unless,     furthermore,     the     damage     cannot     fairly 
and  reasonably  be  determined.     Either  party  who  assumes  contract 
obligations  is   liable  for   the   failure   or   refusal  to   carry  out  and 
fulfill  the  same,  and  in  the  amount  of  damages  actually  suffered; 
and  the  party  who  first  commits  a  substantial  default  is  liable  to 
the  other  for  the   damages  which   he   may  suffer.     A   substantial 
breach  by  one  party  authorizes  the  other  party  to  take  advantage 
of  the  breach  and  to  refuse  further  to  perform  his  part  of  the  con- 
tract.   If,  however,  he  continue  in  the  performance  of  the  contract, 
he  may  be  held  to  have  waived  or  condoned  the  first  or  primary 
breach  by  the  other  party.     In  such  case  it  is  often  necessary  to  give 
notice  to  the  party  who  has  first  committed  a  breach,  that  while 
you  permit  him  to  continue  with  the  contract  and  while  you  continue 
to  fulfill  and  perform  your  part  of  the  contract,  you  do  not  waive 
or  condone  the  first  offense  or  breach. 


158  SPECIFICATIONS  AND   CONTRACTS. 

The  courts  are  uniformly  against  the  enforcement  of  contract 
clauses  providing  for  penalties,  forfeitures  and  even  liquidated 
damages.  If  the  contractor  can  show  that  the  owner  did  not  suffer 
any  damages,  or  that  the  damages  which  he  suffered  are  materially 
less  than  stipulated  in  the  contract  as  liquidated  damages,  the  courts 
are  likely  to  refuse  to  enforce  a  clause  for  liquidated  damages  and 
to  grant  the  owner  only  such  damages  as  he  has  actually  suffered. 
The  courts  will  not  enforce  penalties  or  forfeitures  in  any  case.  It 
is  therefore  desirable  always  to  avoid  the  words  "penalties"  and 
"forfeitures,"  and  to  expressly  declare  that  the  amount  stipulated  is 
liquidated  damages  and  not  penalties  and  forfeitures.  If  an  amount 
be  stated  as  liquidated  damages  for  the  breach  of  a  contract,  the 
owner  will  usually  be  limited  to  that  amount,  even  though  his 
actual  damages  are  several  times  as  much.  The  clause  therefore 
works  both  ways,  against  the  interests  of  the  owner  as  well  as  to 
protect  him.  If  the  amount  named  be  made  so  great  as  to  provide 
for  any  and  every  breach,  then  it  will  be  so  greatly  in  excess  of  one 
or  a  few  breaches  by  the  contractor  that  the  courts  will  regard  it  so 
unreasonable  and  burdensome  that  they  will  refuse  to  enforce  it, 
and  will  give  to  the  owner  only  the  actual  damages  that  he  may 
prove  that  he  suffered  by  reason  of  the  one  or  several  breaches  by 
the  contractor.  The  use  of  a  clause  providing  for  liquidated  dam- 
ages is  excusable  only  in  those  instances  or  cases  where  the  amount 
of  damages  cannot  be  determined  or  assessed. 

46.  Indemnity  Clauses. — A  contract  for  the  erection  and  com- 
pletion of  a  structure  or  works  should  not  be  turned  into  a  policy 
of  insurance.  It  has  been  the  practice  to  make  a  contractor  liable  for 
damages  or  injuries  to  persons  and  property  resulting  from  his 
operations  in  the  erection  of  structures;  also  to  make  him  liable  for 
acts  or  negligence  of  himself  and  his  employees.  Ordinarily,  such 
indemnity  should  be  limited  to  the  wilful,  negligent  and  malicious 
acts  of  the  contractor,  and  he  should  not  be  required  to  indemnify 
the  owner  for  misfortunes,  injuries  or  damages  to  the  person  or 
property  of  other  people,  which  are  the  natural  result  of  the  under- 
taking, and  which  could  not  reasonably  have  been  avoided  by  the 
exercise  of  due  care  and  diligence  on  the  part  of  the  contractor.  Of 
course,  it  may  be  the  intention  of  the  owner  and  engineer  to  make 
the  contract  one  of  insurance  or  indemnity  at  all  hazards  and  in 
any  case.  If  such  be  the  intention,  it  should  be  made  clear  and  the 
contractor  should  so  understand  it. 

Under  the  general  clause  making  the  contractor  liable  for  the 
misconduct,  and  negligence  of  himself  and  his  employees,  engineers 


NOTES  ON  THE  LAW  OF  CONTRACTS.        159 

and  their  employers  have  undertaken  to  shift  upon  the  contractor 
damages  and  injuries  of  every  kind  and  from  whatever  cause.  Thus, 
in  the  erection  of  an  elevated  railroad  over  a  trolley  line,  the  rail- 
road company  has  sought  to  hold  the  construction  company  for 
damages  which  it  suffered  by  causing  the  death  of  one  of  the 
employees  of  the  contractor,  which  resulted  from  the  operation  of  its 
trains — i.e.,  by  running  them  too  fast;  and  a  municipality  has 
endeavored  to  hold  a  contractor  responsible  for  damages  to  a  mill- 
owner  resulting  from  depriving  him  of  sewage  water  taken  from  a 
stream  by  an  intercepting  sewer  built  for  the  municipality.  The 
damages  complained  of  in  the  latter  case  were  caused  not  by  the 
negligence  or  misconduct  of  the  contractor,  but  by  the  fact  that  the 
sewer  was  built  at  all,  and  the  courts  held  that  the  municipality 
only  was  responsible  and  not  the  contractor. 

If  construction  contracts  be  drawn  so  as  to  provide  for  insur- 
ance of  all  the  risks  that  may  arise  during  the  construction,  and 
so  as  to  assume  responsibility  for  the  results  of  the  erection,  com- 
pletion and  operation  of  the  works  undertaken,  it  may  be  expected 
that  insurance  premiums  will  be  added  to  the  contract  price  of  the 
contractor,  and  that  the  premium  rates  will  be  in  excess  of  that 
charged  for  marine  insurance.  It  is  the  feeling  of  the  writer  that  a 
construction  agreement  should  not  be  made  a  contract  for  insurance. 

47.  Subletting  and  Assignment  of  Moneys  Earned. — Contracts 
usually  provide  against  the  subletting  of  work  without  the  consent 
of  the  owner  or  engineer.  They  also  sometimes  forbid  the  assign- 
ment of  moneys  earned  or  to  be  earned.  If  the  contract  forbids 
the  subletting  of  the  contract  or  parts  thereof  to  other  master 
mechanics  or  contractors,  the  performance  of  the  contract  may  not 
be  sublet  to  other  persons;  but,  generally  speaking,  a  provision 
forbidding  the  assignment  of  moneys  earned  or  to  be  earned  (in 
the  absence  of.  a  statute  to  the  contrary  as  to  wages)  is  not  binding 
upon  the  parties,  as  it  prevents  the  transfer  of  property  rights  of 
the  contractor.  This  has  been  held  to  be  so  even  when  an  act  of  the 
legislature  forbids  the  assignment  of  moneys  earned  under  a  con- 
tract for  a  public  improvement.  It  has  also  been  held  that  such 
provisions  do  not  forbid  the  employment  of  sub-contractors  or  master 
mechanics  in  the  several  trades  to  do  the  work  for  and  on  behalf 
of  the  contractor,  especially  where  the  contractor  is  a  general  con- 
tractor and  known  to  be  such  at  the  time  the  contract  was  entered 
into.  Some  courts  have  treated  these  clauses  of  contracts  forbid- 
ding subletting  with  more  or  less  indifference,  unless  the  owner 
had  and  showed  some  good  and  sufficient  reason  for  refusing  his 


160  SPECIFICATIONS   AND    CONTRACTS. 

consent  to  the  subletting,  on  the  ground  that  the  contractor  was 
responsible  for  the  performance  and  completion  of  his  contract,  and 
for  the  further  reason  that  in  the  event  of  death  or  disability,  it 
could  and  would  very  likely  be  performed  and  completed  by  his 
executor  or  administrator,  who  might  be  anybody  mentioned  in  the 
will  or  designated  by  the  Surrogate. 

In  the  case  of  contracts  for  personal  or  professional  services,  a 
contrary  rule  would  prevail  if  the  contractor  be  selected  on  account 
of  his  peculiar  qualifications  and  special  skill  to  erect,  say,  a  light- 
house. In  such  a  case  it  is  doubtful  if  the  contract  could  be  assigned 
or  sublet,  or  if  it  would  descend  to  his  executors  and  administrators 
upon  his  death.  Contracts  for  professional  services,  as  those  of  an 
architect,  engineer,  attorney  or  physician,  are  not  assignable  and 
cannot,  against  the  wishes  of  the  owner  or  employer,  be  continued 
and  completed  by  the  legal  representatives  of  the  professional  man. 

48.  Arbitration  or  Engineer's  Decision. — Dr.  Waddell's  belief 
in  arbitration  is  not  shared  by  the  writer  in  construction  contracts. 
The  writer's  experience  with  contract  clauses  providing  for  arbitra- 
tion is  that  in  nine  cases  out  of  ten,  when  controversies  have  arisen, 
one  or  the  other  of  the  parties  will  refuse  to  carry  out  the  pro- 
visions for  arbitration.  This  they  may  do  with  impunity,  as  there 
is  no  means  of  compelling  them,  under  the  ordinary  provisions  of 
the  contract,  to  carry  out  the  terms  of  the  submission  to  arbitration; 
and  they  may,  without  generally  subjecting  themselves  to  any 
damages  whatever,  decline  either  to  appoint  arbitrators  or  to  attend 
an  arbitration.  If,  however,  they  do  take  part  and  the  award  be 
made  and  served  upon  the  parties,  they  are  irrevocably  bound  by 
such  an  arbitration.  The  trouble  is  and  will  be  that  they  will  refuse 
to  either  appoint  arbitrators  or  to  attend  or  take  any  part  whatever; 
or  one  of  the  parties  will  seek  to  limit  the  scope  of  the  arbitration 
to  those  matters  and  things  in  which  he  feels  the  stronger,  elimi- 
nating and  refusing  to  arbitrate  matters  which  are  apparently 
against  him. 

Owing  to  this  fact  the  use  of  the  arbitration  clause  might  as 
well  be  omitted,  as  the  parties,  if  willing  to  arbitrate,  can  at  any 
time  come  to  terms  of  an  arbitration  for  the  settlement  of  their  con- 
troversies, and  the  use  of  the  clause  under  the  circumstances  deceives 
and  misguides  the  contractor  and  sometimes  the  owner  in  the 
belief  that  he  can  require  the  other  party  to  submit  their  differences 
to  a  board  of  arbitrators  to  be  selected  in  accordance  with  the 
terms  of  the  contract. 


NOTES  ON  THE  LAW  OF  CONTRACTS.        161 

49.  Arbitration  Defeated. — The  general  form  of  contract 
approved  by  the  American  Institute  of  Architects  and  the  National 
Association  of  Builders  contains  a  clause  similar  to  that  given  in 
the  text,  and  of  some  twelve  or  more  cases  that  have  come  to  the 
notice  of  the  writer,  in  only  one  have  the  parties  consented  to  and 
carried  out  the  provisions  for  arbitration.  In  fact,  it  may  be  taken 
as  the  rule,  rather  than  the  exception,  that  the  owner  will  not  carry 
out  the  provisions  for  arbitration,  and  if  he  do  he  will  insist  that 
the  questions  to  be  submitted  be  limited,  or  that  the  arbitrators  be 
selected  from  the  legal,  architectural  or  engineering  profession,  so 
that  the  contractor  will  be  outclassed,  if  not  prejudiced.  This 
declaration  is  made  after  ten  years'  active  experience  in  such 
cases.  It  is  believed  that  there  is  no  more  danger  of  injustice  in  sub- 
mitting questions  of  construction  to  the  absolute  determination  of  a 
civil  engineer  than  there  is  in  submitting  it  to  the  determination 
of  a  judge,  who  may  be  as  subject  to  influence  as  is  the  engineer, 
and  generally  I  believe  that  contractors,  if  they  conduct  their 
operations  in  a  fair,  conscientious  and  skilful  manner,  will  be  better 
treated  and  get  more  justice  at  the  hands  of  a  competent,  experi- 
enced civil  engineer  than  they  will  at  the  hands  of  twelve  ignorant 
jurymen.  The  influence  of  blood,  caste,  politics,  religion  and  secret 
societies  upon  the  different  units  of  a  court,  are  just  as  likely  to 
affect  the  recovery  of  a  contractor  in  court  as  is  the  personal  bias  of 
the  engineer  of  the  field  or  office;  and  the  practice,  which  has  grown 
up  in  the  centuries  of  experience,  of  leaving  construction  matters 
to  the  determination  of  the  engineer,  is  one  that  should  be  respected 
and  not  dispensed  with  for  the  reason  that  it  is  autocratic.  What 
should  be  done  among  engineers  and  architects  is  to  establish  and 
maintain  such  a  standard  of  practice  and  of  judicial  determination 
as  shall  command  the  respect  and  consideration  of  all  contractors 
and  builders,  and  the  dishonest,  disreputable  engineer  or  architect 
deserves  any  fate  that  may  overtake  him.  He  is  quite  unfit  to 
exist  in  a  civilized  community. 

An  arbitration  which  requires  the  employment  of  three  repre- 
sentative men  of  a  community  or  of  professional  life  is  an  expensive 
tribunal  to  determine  ordinary  questions  of  engineering  contracts. 
The  expense  of  providing  the  arbitrators-,  added  to  that  of  the 
stenographer  at  professional  prices,  is  sufficient  to  deter  the  average 
owner  or  contractor  from  proceeding  with  an  arbitration,  even 
though  he  may  have  agreed  to  it  inadvertently  in  the  contract,  not 
knowing  the  extraordinary  expense  attending  it.  Trials  at  courts 
are  practically  without  expense  to  the  litigants,  except  the  employ- 


162  SPECIFICATIONS   AND    CONTRACTS. 

ment  of  attorneys  and  the  expense  incident  to  providing  witnesses, 
experts,  etc.     This  is  expensive  enough. 

50.  Appeal  to   Single  Arbitrator. — A  practice  that  is  gaining 
favor  is  to  make  an  appeal  from  the  engineer  in  charge  of  the  work 
to  some  distinguished,  high-class  engineer  or  other  person  familiar 
with  the  work,  and  who  has  no  personal  acquaintance  with  either 
the  engineer  or  the  architect  in  charge  or  with  either  party,  and  to 
leave  the  determination  of  question  in  dispute  to  his  sole  determi- 
nation.   Such  a  practice  is  much  less  expensive,  and  by  it  the  parties 
secure  the  knowledge,  experience  and  superior  insight  of  a  profes- 
sional man  who,  having  no  interest  whatever  in  the  matter  and  not 
even   an   acquaintance   with  the   parties,   would   be   most  likely  to 
determine  the  matter  fairly  and  without  prejudice.     If  such  a  party 
be  named  in  the  contract  when  it  is  entered  into  and  his  determina- 
tion be  made  final  and  conclusive,  instead  of  the  employee  of  the 
owner,   then   there  can   be   no  failure  of  the   arbitration,   and   the 
parties,  when   the  subject  is  submitted  by  the  engineer  in  charge 
to   the  arbitrator,  will   be   conclusively  bound  by  his  decision  and 
award.     Such  an   arbitrator  need  not  necessarily  be  the   foremost 
engineer  of  the  continent  nor  a  leading  light  in  the  societies,  but  a 
man  whose  experience  in  the  particular  line  of  work  would  specially 
qualify  him  to  determine  the  questions  at  issue. 

Neither  party  to  an  arbitration  can  appeal  from  the  decision 
of  the  arbitrators  when  it  is  once  made  and  communicated  to  the 
parties.  No  appeal  can  be  had  by  either  party  to  the  courts,  unless 
gross  fraud  and  collusion  are  shown  between  the  arbitrators  and 
one  of  the  parties  or  the  engineer  and  architect.  The  award  by 
arbitrators  is  final  and  conclusive  upon  the  parties,  without  appeal, 
if  the  award  was  fairly  and  honestly  made. 

51.  Engineer's  Decision  as  to  Extras  and  Additional  Work. — 
Extra  work  has  been  defined  as  work  outside  of  the  contract.    A 
contract  is  supposed  to  apply  to  the  work  described  therein,  and  the 
terms  of  a  contract  cannot  by  implication  be  extended  to  apply  to 
anything  except  the  structure,   work  and  materials  described.     If, 
therefore,  it  is  intended  that  the  engineer  or  arbitrator  should  pass 
upon,   inspect,   accept  and   reject  extra   work,   the  contract  should 
specially  provide  therefor;   otherwise  his  decision  will  not  be  final 
and  binding  upon  the  contractor  as  to  such  extra  and  additional 
work.     The  omission  of  this  clause  is  one  of  the  serious  mistakes  of 
engineers  and  architects  in  the  preparation  of  contracts. 

52.  Laws  of  what  Place  Govern. — It  is  well  known  that  the 
laws   differ   in    the    different   states   and   territories.     The   laws    of 


NOTES  ON  THE  LAW  OF  CONTRACTS.        163 

contracts  are  practically  the  same  throughout  the  United  States  and 
in  the  British  possessions,  but  many  laws  which  determine  the 
rights  and  liabilities  under  contracts  vary  greatly  in  different  locali- 
ties. Some  states  have  what  are  known  as  statutes  of  frauds, 
which  determine  the  form  and  conditions  under  which  binding 
contracts  may  be  made  and  concluded;  also  statutes  of  limitations, 
which  limit  the  time  within  which  obligations  are  required  to  be 
enforced  by  action  in  the  courts.  There  are  also  lien  laws  and  labor 
laws  which  affect  the  contract  and  which  differ  in  the  various 
states,  territories  and  possessions  of  the  United  States.  Therefore, 
what  laws  apply  to  the  contract?  Generally,  laws  pertaining  to  the 
legality  and  enforcement  of  the  contract  will  depend  upon  the  laws 
of  the  place  where  it  is  made,  and  the  laws  pertaining  to  labor, 
liens  and  legal  rights  of  the  parties  will  depend  upon  the  place 
where  it  is  to  be  performed  and  enforced.  These  matters  should 
always  be  taken  into  consideration  in  the  preparation  of  a  contract, 
and  they  usually  require  the  advice  of  an  attorney-at-law  who  is 
familiar  with  the  laws  respectively  where  the  contract  is  made  and 
where  it  is  to  be  performed,  and  with  the  laws  of  the  domicile  of 
the  respective  parties. 

53.  Corporate  Power  to  do  Business. — Another  important  mat- 
ter to  be  considered,  where  either  of  the  parties  is  a  corporation  and 
the  work  is  to  be  in  a  state  or  locality  other  than  the  domicile  of 
the  corporation,  is  to  determine  that  said  corporation  is  entitled 
to  do  business  in  the  locality  where  the  work  is  to  be  performed. 
For  instance,  if  a  Jersey  or  Maryland  corporation  goes  to  the  State 
of  New  York  and  undertakes  the  erection  and  completion  of  a 
structure,  and  it  enters  upon  the  performance  of  the  contract  with- 
out securing  from  the  Secretary  of  State  the  necessary  license  and 
certificate  to  do  business,  the  said  corporation  cannot  enforce  its 
claims  in  the  courts  of  the  State  of  New  York,  nor  can  it  collect 
in  its  courts  from  the  persons  or  corporations  doing  business  in 
the  State  of  New  York  under  license  any  of  the  moneys  earned  in 
the  performance  of  the  whole  or  any  part  of  the  said  contract.  This 
is  true  in  the  State  of  New  York,  even  though  the  contractor  cor- 
poration obtains,  subsequent  to  undertaking  the  work,  a  license  to 
do  business  within  the  State  of  New  York,  and  the  courts  have 
gone  so  far  as  to  hold  that  the  foreign  corporation  doing  business 
in  the  State  of  New  York  without  a  license  cannot  assign  the  claim 
accruing  to  it  from  the  doing  of  business  in  the  said  state  to  a  third 
party,  with  the  right  to  sue  and  recover  the  said  claim.  This  is  a 
very  grave  hardship  to  a  foreign  corporation,  and  it  is  a  matter  that 


164  SPECIFICATIONS   AND    CONTRACTS. 

is  comparatively  new  in  the  statute  laws  of  our  states,  and  it  there- 
fore behooves  the  engineer  who  prepares  contracts  for  foreign  cor- 
porations to  see  that  said  corporations  are  licensed  to  do  business 
in  the  territory  where  the  contract  is  to  be  performed  and  fulfilled, 
lest  the  money  be  expended,  the  work  done  and  the  materials  fur- 
nish'ed,  with  grave  doubts  as  to  a  recovery  therefor. 

This  is  an  example  of  what  may  result  from  engineers  and5 
laymen  preparing  contracts  and  undertaking  to  do  business  without 
the  necessary  guidance,  counsel  and  advice  of  a  well-informed 
attorney-at-law,  and  it  is  but  one  of  many  instances  of  serious  loss 
resulting  from  a  desire  to  economize,  in  what  to  good  business  men 
are  necessary  expenditures  in  the  conduct  of  any  business — viz., 
legal  supervision. 

54.  Other  Legislative  Restrictions. — Restrictions  are  likewise- 
imposed  frequently  by  the  legislature  upon  municipal  corporations, 
including  school  districts  and  boards  of  education.  They  are 
frequently  restricted  in  their  powers  to  contract,  and  require  cer- 
tain forms  and  certain  ceremonies  to  be  followed  before  a  valid 
contract  can  be  made  and  entered  into.  One  restriction  most 
familiar  is  that  of  advertising  and  awarding  a  contract  to  the  lowest 
bidder  after  public  competition,  and  another  is  that  the  undertaking 
should  be  founded  upon  petitions  of  abutting  property-owners,  and 
another  that  it  should  be  authorized  by  resolution  of  the  board  of 
aldermen  or  city  council  after  public  notice  and  hearings.  Other 
requirements  are  that  the  contract  should  be  approved  by  the  cor- 
poration counsel,  and  that  money  should  be  appropriated  and  cer- 
tified by  the  financial  officer  of  the  municipality  or  of  the  state. 
When  these  conditions  are  made  conditions  precedent  to  the  making 
and  entering  into  of  a  contract  by  the  government,  state  or 
municipality,  it  is  absolutely  necessary  that  they  should  be  strictly 
followed,  to  the  letter  of  the  law,  lest  they  be  declared  by  the  courts 
to  be  ultra  vires,  invalid  and  not  binding,  and  lest  the  contractor 
shall  have  performed  and  fulfilled  the  contract  in  whole  or  in  part, 
only  to  find  that  he  is  not  entitled  to  recover  for  his  services,  labor 
and  materials.  These  are  hardships  against  which  neither  the  courts 
nor  public  officials  can  relieve,  though  they  may  be  subsequently 
authorized  and  payment  provided  for  by  act  of  the  legislature  or  of 
Congress,  if  the  contractor  have  the  influence  requisite  to  secure 
the  passage  of  a  bill  authorizing  the  same,  which  frequently  is  not 
only  expensive  to  the  contractor  in  time,  but  in  other  valuable  con- 
siderations. 


NOTES  ON  THE  LAW  OF  CONTRACTS.        165 

55.  Restrictions  and  Limitations  are  Numerous. — The  restric- 
tions  and   conditions  precedent  prevailing   in  these  modern  times 
in  the  various  states  and  nations  are  so  numerous,  so  exacting,  so 
extraordinary,  that  no  corporation  or  well-informed  business  man 
or  men  will  undertake   a  project  of   any   importance  without  the 
advice  and  counsel  of  a  local  attorney.     To  do  so  is  suicidal  to  the 
best  interests  and  success  of  an  undertaking.     A  restriction  affecting 
the  right  to  enforce  or  to  recover  under  a  contract  is  that  existing 
in    some    states    and    which    requires    that    the    contract   (and    in 
some     states    the    specifications    and    plans)    shall     be   registered 
in  the  office  of  the  town  or  county  clerk,  which  precludes  the  con- 
tractor from  recovery  for  the  work  done  and  the  materials  furnished 
if  the  law  be  not  complied  with  and  which  in  some  localities  makes 
the   contractor's  recovery  secondary   to   that  of  material  men   and 
laborers  who  have  furnished  materials  or  labor  for  the  structure. 
These  laws  may  appear  to  the  student  drastic  and  unreasonable  and 
unconstitutional    and    against    the    inviolability    of    contracts    and 
within  the  inhibitions  of  the  Constitution  of  the  United  States,  but 
they  have  been  held  constitutional  and  are  in  force,  and  it  is  much 
easier  and  far  more  economical  to  meet  such  conditions  than  it  is 
to  litigate  them  through  the  highest  courts  to  establish  their  uncon- 
stitutionally. 

56.  Lien    and,   Labor   Laws. — Other   local    laws    which    should 
always  have  the  consideration  of  the  parties  who  enter  into  a  con- 
tract to  be  performed  in  a  foreign  state  or  nation  are  the  lien  and 
labor  laws,  which  give  to  certain  persons  or  classes  of  persons  a 
preference   in   the  payment  or   establishment   of   their   claims   and 
which  determine  the  hours  of  labor,  and  in  some  instances  even  the 
prices   to   be    paid   therefor    and   the   manner   of    payment.     These 
restrictions  may  greatly  enhance  the  cost  of  labor  and  materials  and 
therefore  the  structure,  and  seriously  affect  the  contract  price.     If 
they  are  not  considered  in  making  the  bid  and  before  entering  into 
the  contract,  then  they  may  be  and  become  the  ruin  of  the  con- 
tractor and  of  the  project  itself. 

In  addition  to  the  various  statute  laws,  there  should  also  be 
mentioned  the  laws  of  custom  and  usage  which  prevail  in  different 
localities  and  which  determine  the  unit-method  or  manner  of 
measuring  or  determining  quantities,  or  the  manner  and  method  of 
doing,  performing  and  completing  work  and  the  times  or  methods 
of  payment.  These  customs  and  usages  are  at  times  far-reaching, 
especially  in  determining  the  measurement  of  stone,  brick  and 
plaster  work. 


166  SPECIFICATIONS   AND    CONTRACTS. 

57.  Authority  to  Contract. — One  of  the  most  difficult  and  deli- 
cate things  to  determine  in  negotiating  a  contract  is  the  authority 
of  the  person  or  party  who  assumes  to  act,  to  make  and  enter  into 
a  contract.     If  the  real  party  be  a  corporation,  it  is  a  matter  of 
some   delicacy   to   ask   the   engineer,   the   general   manager   or  the 
president  for  evidences  of  his  authority  to  make  the  contract  on 
behalf  of  the  corporation.    The  authority  is  vested  primarily  in  the 
board  of  directors,  and  it  can  be  delegated  only  by  an  act  of  the 
board  of  directors  regularly  convened,  at  a  regular  or  special  meet- 
ing duly  and  properly  called.    Frequently  the  president  or  general 
manager  is  authorized  to  execute  contracts  by  the  by-laws  or  by  a 
general  resolution  of  the  board.     In  such  cases  it  is  incumbent  upon 
the  contractor  to  ask  to  see  such  minutes  or  to  be  furnished  with  a 
copy  of  such  resolutions  certified  over  the  hand  of  the  secretary  and 
the  corporate  seal  of  the  company.    Likewise,   the  authority  of  a 
public   officer   should   be    determined   before   accepting   or   entering 
upon  a  contract  executed  by  him.     An  agent,   likewise,  should  be 
expected  to  show  conclusive  evidence  of  his  authority,  by  power  of 
attorney  ordinarily,  to  make  and  enter  into  contracts  for  and   on 
behalf  of  his   employer   or   principal.     The   authority  of   a  public 
officer  will  usually  be  found  in  the  constitution  or  statutory  laws  of 
the  state  or  in  the  charter  and  ordinances  of  a  municipality.    Much 
trouble,  litigation  and  loss  would  be  prevented  if  contractors,  engi- 
neers and  architects  would  look  into  this  matter  of  authority  of  the 
parties  to  act,  before  accepting  obligations  assumed  by  them. 

58.  Legal  Representatives  of  the  Parties. — In  contracts  that  are 
assignable  it  is  customary  to  declare  the  contract  binding  upon  the 
legal  representatives   of  the  parties.    This  is  hardly  necessary,  as 
every  assignable  contract  is  for  the  benefit  of  the  legal  representa- 
tives of  the  parties.     It  might  be  that  the  legal  representatives  of  a 
person  deceased  might  refuse  to  proceed  with  and  fulfill  some  con- 
tracts that  partake  of  the  character  of  personal  services,  and  it  is 
a  common  practice  to  describe  the  parties  as  being  the  persons  or 
partnership     and   their    executors,    administrators    or    assigns.     A 
frequent  expression  among  engineers  and  architects  is  to  seek  to 
obligate  an  incorporated  company,  "its  executors,  administrators  and 
assigns,"  as  if  a  corporation  could  have  executors  and  administrators, 
which    is    impossible.      A    corporation's    legal    representatives    are 
usually  described  by  the  words  "successors  and  assigns";  a  person's 
by  the  words  "executors,  administrators  or  assigns,"  sometimes  by 
the  word  "heir"  which  in  a  contract  is  superfluous. 

59.  Consideration. — The  consideration  of  a  contract  ordinarily 


NOTES  ON  THE  LAW  OF  CONTRACTS.        167 

is  that  which  the  contractor  is  to  receive  for  his  undertaking,  but 
what  he  is  to  do  is  no  less  a  consideration  moving  to  the  owner. 
In  the  contemplation  of  the  law,  that  which  the  contractor  is  to  do 
or  perform  is  the  legal  equivalent  of  that  which  he  is  to  receive 
from  the  owner,  but  the  law  (the  court)  shuts  its  eyes  to  ordinary 
inequalities  and  will  not  substitute  its  own  opinion  for  that  of  the 
parties  as  to  whether  or  not  the  acts  and  deeds  of  the  parties  are 
equivalent.  The  courts  will  find  an  adequate  consideration,  unless 
it  be  so  clear  that  the  consideration  cannot  be  equivalent  to  the 
obligation  assumed  by  the  other  party.  A  ridiculous  illustration  of 
such  a  case  is  one  where  the  contract  provides  that  "for  and  in 
consideration  of  one  dollar  by  the  parties  each  to  the  other  in  hand 
paid  (a  mutual  exchange),  the  contractor  hereby  does  undertake 
and  agree  as  follows."  It  is  perfectly  apparent  that  the  exchange 
of  one  dollar  affords  no  consideration  for  the  obligation  of  the  con- 
tractor, and  such  an  expression  might  better  be  entirely  omitted,  as 
it  is  an  express  declaration  that  no  consideration  did  pass  between 
the  parties. 

60.  Execution  of  Contracts. — Contracts  are  usually  executed, 
i.  e.,  evidenced,  by  the  signature  and  seal  of  the  party  and  fre- 
quently by  the  acknowledgment  of  that  signature  before  a  notary 
or  commissioner  of  deeds.  The  signature  and  seal  subscribed  and 
placed  at  the  end  of  a  contract  are  to  witness  the  same;  the  seal  is 
a  mere  formality  quite  necessary  when  either  of  the  parties-  is  a 
corporation.  Care  should  be  taken  that  the  signature  is  in  the 
name  of  the  party  who  assumes  the  obligation  and  whose  name  is 
written  at  the  beginning  of  the  contract  as  the  contracting  party. 
It  is  especially  important  that  the  exact  title  of  a  corporation 
should  be  used,  and  the  name  of  the  corporation  should  be  sub- 
scribed, followed  by  the  word  "By"  and  the  name  of  the  officer  who 
executed  it,  with  h'is  title.  It  is  good  practice  to  place  at  the  left 
thereof  the  word  "Attest,"  with  the  seal  and  the  subscription  of  the 
name  of  the  officer  who  attests  and  affixes  the  seal.  Likewise  the 
name  of  a  co-partnership  should  be  signed  in  full  with  the  word 
"By"  and  the  name  of  the  party  subscribing,  with  his  title,  as 
partner,  agent  or  attorney.  A  person  acting  under  a  power  of  at- 
torney as  an  attorney-in-fact  should  be  distinguished  from  an 
attorney '-at-law  merely.  A  common  form  is  "IN  WITNESS 
WHEREOF  the  parties  hereto,  on  the  day  and  date  above  writ- 
ten, have  hereunto  subscribed  their  names  and  affixed  their  seals." 
This,  however,  will  not  answer  for  a  corporation  which  has  not 
the  power  to  subscribe  its  name  and  to  affix  its  seal.  For  a  cor- 


168  SPECIFICATIONS   AND   CONTRACTS. 

poration  a  common  form  is  "IN  WITNESS  WHEREOF  the  parties 
hereto  have  caused  this  instrument  to  be  executed  by  its  appro- 
priate officers  on  the  day  first  above  written." 

61.  Proof  of  Contract. — The  object  of  having  a  contract,  deed 
or  bond  signed  is  in  order  that  it  may  be  more  readily  proven  in 
court.     The    courts    require   that   either   the   parties  themselves  be 
called  to  prove  the  execution  of  the  instrument,  or  that  somebody 
who  saw  or  knows  the  signatures  of  the  parties,  testify  to  the  fact 
that    they    are    the    signatures    of    the    parties.      It    is    therefore 
convenient  to  have  the  party  who  witnesses  the  subscription  to  the 
instrument,    attest   to    the    same    by   subscribing   to   the   following 
words,  "Signed,  sealed  and  delivered  in  the  presence  of,"  if  the  de- 
livery of  the  instruments  be  made  then  and  there.     If  only  signed 
and  sealed  then  omit  the  word  "delivered."     It  is  preferable,  how- 
ever, to  have  the  execution  of  the  instrument  acknowledged  before 
a  public  officer  authorized  to  take  such  acknowledgments.     Such  are 
notaries  public,  commissioners  of  deeds,  clerks  and  judges  of  courts. 
If  such  an  officer  signs  and  seals  such  an  acknowledgment  the  court 
will  accept  the  instrument  as  sufficiently  proved  to  be  admitted  in 
the  evidence.     If,  however,  the  instrument  is  to  be  used  in  some 
other  state  than  that  in  which  the  notary  public  or  commissioner 
of  deeds  resides,  it  is  necessary  to  have  the  clerk  of  the  court  (the 
county  clerk)    of  the  county  in  which  the  notary  or  commissioner 
of  deeds  resides  certify  that  the  person  so  subscribing  is  a  notary 
public  during  the  period  within  which  the  instrument  is  acknowl- 
edged to  have  been  executed.     This  certificate  should  not  be  over- 
looked upon  any  instrument  which  is  to  be  used  without  the  state 
within  which  it  is  executed,  especially  if  the  instrument  (contract 
or  otherwise)   is  to  be  registered  with  the  county  or  town  clerk  in 
said  foreign  state.     If  the  contract  is  to  be  used  in  a  foreign  coun- 
try, it  is  sometimes  necessary  to  have  it  attested  or  certified  by 
the  minister  or  consul  credited  to  that  country. 

There  is  more  to  the  proper  execution  of  a  contract,  deed  or 
bond  than  is  generally  supposed  among  laymen,  and  it  is  well  always 
to  submit  a  contract,  deed  or  bond  to  an  attorney  before  it  is 
finally  accepted,  for  advice  as  to  whether  it  has  been  duly  and 
properly  executed  and  all  the  requirements  of  the  law  complied  with. 

62.  In   conclusion,   the   writer   would   impress  upon  technical 
students  a  realization  of  the  value  to  them,  as  engineers  or  busi- 
ness  men,    of   the   study   of   the   principles   of   contract   law,    and 
recommends  most  strongly  an  earnest  effort  to  prepare  Specifica- 


NOTES  ON  THE  LAW  OF  CONTRACTS.        169 

tions  and  Contracts  covering  the  examples  presented  by  Dr.  Wad- 
dell,  and  in  connection  therewith  to  study  and  apply  the  principles 
which  he  has  laid  down,  having  in  mind  the  evils  and  misfortunes 
described  in  the  foregoing  sections.  As  practicing  engineers  and 
architects,  or  as  business  men,  you  will  unquestionably  appreciate 
the  value  of  such  study  and  exercises  more  than  you  can  now,  as 
students,  realize  their  importance.  A  very  valuable  feature  of  Dr. 
Waddell's  lectures  is  the  practical  examples  presented,  which  are 
abundant  food  for  intellectual  effort  and  application.  For  reference 
and  for  a  more  extended  treatment  of  the  law  of  contracts,  the 
writer  naturally  refers  to  his  own  works,  which  Dr.  Waddell  has 
already  mentioned  in  the  text. 

It  is  the  element  of  practical  illustration  and  example — the 
principle  of  laboratory  instruction  embodied  in  Dr.  Waddell's  lec- 
tures that  will  recommend  his  treatment  to  professors  of  technical 
.schools.  This  principle  is  the  one  that  to-day  places  the  industrial 
schools  nearly  a  century  in  advance  of  the  schools  of  law  and  per- 
haps of  theology.  This  presentation  and  study  of  the  practical  and 
the  theoretical  together  is  the  one  thing,  more  probably  than  any 
other,  that  has  contributed  to  the  superiority  of  our  industrial  and 
technical  schools,  and  our  colleges  of  medicine,  dentistry  and  agri- 
culture. Much  though  it  is  to  be  regretted,  it  has  yet  to  be  adopted 
.generally  in  the  law  schools. 

Be  not  content  with  theories, 

Dare  the  arduous  and  practical. 

"Reading  makes  a  full  man,  writing  an  exact  man." 

Read  and  write. 


INDEX. 


1'age 

Abandonment   of  work.  .  .  .17,   86,  88 
Abrogation  : 

Contingent   on    engineer's   cer- 
tificate       155 

Of  contract 71,  154 

Abutments,  concrete 29 

Acceptance  : 

By    engineer    an    added    safe- 
guard    139 

Of  defective  work 14,  141 

Of  structure 141 

Accidents,   responsibility  for....  15 

Accounts 84 

Adherence  to  specifications 10 

Agency 68 

Agreement : 

For     developing     large     enter- 
prise    89 

Promoters' 89 

To  finance  an   enterprise 99 

Alterations    7 

Affecting  validity  of  contract.  153 

In  contracts    72 

In  specifications 11 

Of  plans 15 

To  be  ordered  in  writing 19 

Appeal  from  arbitrator's  award.  73 

Arbitration    160 

Appeal  from  award  of 73 

Defeat  of 161 

Of  disputes 20,  73 

Arbitrator,  single 162 

Arbitrators    88 

Assignment  forbidden 20 

Of  moneys  earned 159 

Attestation  to  contracts 65 

Authority  to  contract 166 

Backfilling 32 

Bending  tests    25 

Blasting    23 

Bonds 74,  79,     87 

Borings   28 

For  steel  pier 40 


Page 

Bridge  contract,  example  of. ...  80 

Cancellation  of  contracts. ..  .71,  154 

Cement 30 

Fineness  of 31 

Storage  of 32 

Tests   31 

Changes  in  specifications 11 

Co-contractors,    specifications    in 

conflict  with  work  of 144 

Commissary    83 

Commercialism    7 

Competency    of    parties    to    con- 
tracts    65,  67 

Compromise  on  claims 75 

Concealment  of  facts 8 

Concrete   29 

Tamping  dry  surfaces  in 30 

Conditions,  changes  in 7 

Conditions  precedent  to  contract.  69 
Conflict     between     specifications 

and  contractor's  judgment..  143 
Conflict     of     specifications     and 

plans  with  terms  of  contract  133 
Conflict    of    specifications     with 

co-contractor's  work 144 

Consideration 76,  166 

Inadequacy  of,  in  contract.  ...  70 

Construction  : 

Of  contract  as  a  whole 142 

Of  contracts  and  specifications  146 

Of  steel    pier 40 

Contract : 

Abrogation  of 154 

Authority  of  parties  to 166 

Cancellation  of 154 

Consideration    of 166 

Construction  against  party  us- 
ing language 135 

Construction   of 146 

Construed  as  a  whole 142 

Covenants    of 150 

Date  of 75 

Engineer's   powers  defined   in.  138 


Page 

Kssentials  of 70-76 

Execution  of 167 

Form   70 

Intention  to  be  fully  expressed 

in 147 

Interpretation    of 134,  135 

Proof  of 168 

Punctuation  of 135 

Relative     lengths     of     various    , 

parts 146 

Scope  of 21,  61,  131 

Signature  and  seal 7~> 

The   superior   instrument 134 

Time  of  essence  in l.">3 

Unsealed    75 

Validity  of,  affected  by  altera- 
tions      153 

Waiver  of  clauses  in 155 

Warranty  involved  in  entirety  137 

Witnesses  to 75,   168 

Written  and  printed  matter. .    135 
Contract    writing,    examples    for 

practice  in 110-127 

Contractor,  directions  to 14 

Contractor's  details 12 

Contractor's  judgment  in  conflict 

with  specifications 143 

Contractors,    several 6 

Contracts : 

All  parts  reconciled  if  possible  134 
Distinguished    from     specifica- 
tions        60 

Engineering 60 

Kssentials  of 02,  63,  70-76 

For  personal  service 69 

Fraudulent  changes  of 108 

Indemnity  clauses  in 158 

Misplaced  confidence  in 62 

( 'orporations : 

Power  of,  to  do  business 163 

Restrictions  imposed  on.  .  .164,  165 

Corrections  of  legal  documents.  .  107 

Cost-plus-a-percentage  plan. 80,  89,  149 

Counsel    1 08 

Covenants  of  contract 150 

Damages  !•"> 

Liquidated 32,  71,  89 

Date  of  contract 75 

Decision  of  engineer 78 

Defective  work 86 

Acceptance  of 14 

And  materials  accepted  by  en- 
gineer    141 

Delay,  no  damages  for 20 

Delays ..  ..78,  79,  S3 

Deliberation    108 

Delivered  material   19 

Development  of  large  enterprise, 

agreement  for 89 


Pago 
Drawings  : 

At  variance  with   plans 133 

Detail    3,     12 

Errors  in 12 

Shop 13 

Verification    of 12 

Drifting  tests 2.". 

Duration  of  contract (50 

Engineer,  status  of 1 

Engineering  contracts (50 

Engineer's   acceptance  : 

An   added  safeguard 139 

Of    defective    work     and     ma- 
terials         141 

Engineer's  decision 78,  87,  138 

As    to     extra     and    additional 

work 162 

Vs.  arbitration    160 

Engineer's    details 12 

Engineer's  duty  to  follow  speci- 
fications      139 

Engineer's  mistakes 9 

Engineer's  powers  defined  in  con- 
tract      138 

Engineer's  preparation    7 

Engineer's  rejection  of  work  and 

materials   140 

Equity    74 

Erasures  in  legal  documents.  .  .  .    107 

Essentials  of  contracts 63 

Attestation    65 

Introduction    64 

Parties,  authority  of 66 

Parties,  description  of 65 

Parties,   number  of 65 

Parties,  precedence  of 66 

Ultra  vires 66 

Eventualities 70 

Example  : 

Promoter's  agreement 89 

Examples  for  practice  in  contract 

writing    110 

Bond 126 

Concrete  dam,  promoter's  agree- 
ment      116 

Copartnership   126-127 

Electric  St.  Ry.  and  viaduct..    110 
Employment,  agreement  for.  .  .    116 

Engineering  partnership    114 

Engineering  services,   contract 

for   123 

Guaranty      of      syndicate      by 

bankers     125 

Ocean  pier 120 

Partnership,  engineering 114 

Replacing  steel  Ry.  bridge 113 

Syndicate,       contract       among 
members 123 


Page 

Viaduct 11 J 

Water-supply  and  sewage  sys- 
tem    119 

Examples  for  practice  in  writing 

specifications 48 

Abutments  and  piers 51 

Archbridge,  reinforced  concrete  53 

Arch  culvert 49 

Bridge  erection 58 

Bridge,  R.  R 52,  53,  59 

Building,    steel 57 

Chimney,  brick   55 

Cleaning   and   repainting 55 

Concrete  sewer  main 53 

Dam,    concrete 54 

Dyke    56 

Excavation   56 

Foundation,    floating 58 

Grading    50 

Jetties,   rock 55 

Lighthouse,   steel 58 

Paving : 

Asphalt    56 

Wood   block 56 

Piers  : 

Masonry 52 

Timber   54 

Pipe  line   51 

Railroad     54 

Bridge    52,  53,  59 

Reinforced-concrete  arch  bridge  53 

Retaining  wall 49 

Roundhouse 58 

Sea-buoy    58 

Settling  basins   56 

Sewer  main,  concrete 53 

Steel  water  tank 53 

Swingbridge   57 

Timber  pier 54 

Tower,  steel  59 

Track,  electric  Ry 57 

Train-shed 57 

Trestle,   R.  R 54 

Tunnel,  in  clay 50 

Rock 50 

Turntable   55 

Viaduct 59 

Water  tank,  steel 53 

Well,   brick    55 

Examples  of  specifications  : 

Lighthouse     34 

Pipe  line    45 

Steel  pier 39 

Excavation   29 

Execution   of  contracts 68,  167 

Form  of 79,  88 

Executive 68 

Extension    of    time 19 

Extra    compensation 20 

Extra  work 151 

Application  of  specifications  to  145 


Page 

Character  of 15- 

Defined    5 

Extras 18 

Price  of 77 

To  be  ordered  in  writing.  .72,  78,  79 

Favoritism     6 

Field  riveting 20 

b  inaucing    an    enterprise,    agree- 
ment  for 99 

Forms  for  concrete  work 30 

Foundations  : 

Depths  of 28 

Lighthouse     35 

Fracture    25 

Fraudulent  changes  of  contracts  108 

Government  as  party  to  contract  08 

Guaranty   of  results 3 

Implied  understanding  of  plans.  137 

Implied  warranty  of  work      ....  136 

Indemnity 15,  78 

Clauses  in  contracts 158 

For  negligence 75 

Indulgences,  effect  of 156 

Infants     67 

Inspection  : 

Delay  in 13 

Expense    of 13 

Facilities  for 13 

Field     13 

Final   14 

Notice  of 13 

Of  defective  work 14 

Strictness  of 16 

Insurance    85 

Intent  of  specifications 16 

Intention,  to  be  fully  expressed.  147 
Interpretation   of  contract, 

134,  135,  148 

Introduction  to  contract 64 

Labor  laws 165 

Legal  advice IU8 

Legal   representatives   of  parties 

to  contract 69,  166 

Letting  work  among  several  con- 
tractors,   disadvantages    of.  148 

Levels    27 

Lex  loci    71,  162 

Lien  laws 165 

Liens,  discharge  of 16 

Lighthouse    34 

Description 34 

Dwelling  house 37 

Foundations   35 

Pile  driving 35 

Spiral  stairs   36 


Tage 

Substructure   35 

Woodwork    38 

Limits  of  the  work  to  he  defined  133 

Lines  and  levels 27 

Liquidated  damages 32 

In  contracts 71,  89 

Litigation,    notification   of 21 

Loading  metal  work  on  vessel .  .  44 

Locality,    advantage    of 5 

Market,  advantage  of 5 

Married    women G7 

Materials  : 

Acceptance  of  defective 141 

Approximate    quantities 22 

Care   of    delivered. 19 

Cement 30 

Concrete     29 

Delivery  of v 85 

Hauling  of 22,  27 

Metals    23 

Old  and  new    21 

Rejected  by  engineer 140 

Removal  of 21 

Rewrought    24 

Shipping     27 

Title   to 77 

Workmanship   on 25 

Medical   attendance 83 

Membership  organization 66 

Mistakes  of  engineer 9 

Negligence 78 

Indemnity  for 75 

Notification   of  impending  suits.  21 
Obstructions  or  obstacles,  unfore- 
seen   28 

Painting  : 

Protection  of  pipes  by 46 

Steel    pier 42 

Taints  for  steel  pier 43 

Papers,  return  of 18 

Parties  to  contracts 65,  66.  67 

Incompetent 67 

Legal  representatives  of ......  166 

Payments  on  contracts 72 

For  work 16 

Monthly  estimates 17 

Percentage  retained 17 

Progress    16 

Pay-rolls 85 

Penalties  in  contracts 32,  71 

Personal  service,  contracts  for.  .  69 
Piers  : 

Concrete    29 

Specifications    for    steel 89 

Pile  driving,   lighthouse 35 

Pile   foundations    29 


Page 

Piles  for  steel  pier 40,     41 

Piling 29 

Pipe    line,   specifications   for ....      45 
Plans : 

Alteration    of 15 

At  variance  with  drawings...    133 

Conflict  of  with  contract 133 

Prepared  by  contractor 3 

Understanding  of 137 

Utility  of   2 

Plant,   definition  of 82 

Powers  of  engineer  defined 138 

Preambles  of  contracts 68,     7C 

Precision    8 

Prices  : 

Schedules  of 77 

Unit    34 

Prior  negotiations   8 

Professional     service,     contracts 

for    72 

Progress  of  work 86 

Progress  payments 16 

Promoter's  agreement 89 

Proof  of  contract 168 

Proposals    33 

Protection  of  pipes 46 

Pumping  from  excavations 29 

Punching  of  steel  work 25,     26 

Punctuation  of  contract 135 

Reaming  punched   holes   in   steel 

work 26 

Rejection  of  work  and  materials 

by  engineer 140 

Release  of  sureties 157 

Repairs    82 

Replacement    of    destroyed    ma- 
terial        85 

Responsibility  for  errors  in  draw- 
ings         12 

Restrictions  imposed  on  corpora- 
tions, legislative 164,  165 

Result  to  be  specified 148 

Results,  when  wanted 5 

Retained  percentage  of  payment     87 

Right  of  way 86 

Risks    28 

Riveting,    field 26 

Scope  of  contract 21,  61,  131 

Shipping  : 

Materials 27 

Metal  work  on  vessel 43 

Shop  drawings 13 

Signature  of  contract 75 

Acknowledgment  of 76 


Page 

Single   arbitrator 162 

Specialists   4 

Specifications  : 

Adherence  to 10 

Against    engineer's    decision .  .    138 

Alterations    in 11 

And  plans,  provision  in  for  re- 
sult  or   complete   structure.    148 
Application  of  to  extra  work.    145 

Changes  in,  effect  of 11 

Conclusive   4 

Conflict    between     contractor's 

judgment  and 143 

Conflict  of  with  co-contractor's 

work 144 

Conflict  of  with  contract 133 

Construction   of    146 

Contents  of 132 

Definition  of   2 

Engineer's  duty  to  follow....    139 
General  and  special  provisions       9 

Good 4 

Intent  or  spirit  of 16 

language  of   6 

Of  results    3 

Preparation  of   2 

Purpose  of 3 

Scope  of 61 

To  be  created 132 

.     What  are  the?   132 

Work  in  accordance  with.  136,  144 

Ultimate  object    9 

Specific  clauses   21 

Steel  and  iron 23,     24 

Structure,  acceptance  of 141 

Subletting  of  work 78,  86,  159 

Forbidden  in  contracts 20,  73 

Sunday  laws   108 

Surety    18 

Release  of    74,  157 

Tamping  concrete   30 

Temporary  works 22 

Tenders    33 

Testing  materials  : 

Cement 31 

Steel  and  iron 24,     25 


Page 

Thoroughfares,    closing 15 

Time  : 

Extension  of 19 

Of  essence  in  contracts.  .  .  .76,  153 

Titles    10 

Tools   and   supplies 84 

Traffic,  interference  with 23 

Transportation  : 

Of  men  and  materials 22,  27 

Of  metal  work  by  vessel 44 

Travel,  expenses  for 83 

Ultra  vires    66 

Understanding  of  plans 137 

Undertaking 76,  77 

Unsealed    contract    (specialty)  .  .  75 
Validity    of   contract    as    affected 

by  alterations loTJ 

Variance  :    plans   vs.    drawings .  .  133 

Verification  of  drawings 12 

Vouchers 84 

Waiver 77 

Of  contract  clauses 155 

War,  effect  on  contracts 67 

Warranty  of  work 137 

Implied   136 

Witnesses  to   contract 75,  168 

Woodwork   for  dwelling   house..  38 
Work  : 

Abandonment  of 17 

Acceptance  of  defective 141 

According  to  specifications.  .  .  .  136 
And   material    rejected   by    en- 
gineer    140 

At     cost-plus-a-percentage      or 

fixed  sum 149 

Completion  by  owner 17 

Implied  warranty  of 136 

Limits  to  be  defined 133 

Payments  for    16 

Subletting   of    159 

To  satisfaction  of  owner 144 

Workmanship    25 

Written  vs.  printed  parts  of  con- 
tract .                                         .  135 


OF  THE 

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